1
Off the plan contracts
for residential
properties
Discussion paper
November 2022
Submissions accepted until 5pm on Friday, 23 December 2022
Forward all submissions to: ORG-Admin@customerservice.nsw.gov.au
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Discussion paper – Off the plan contracts for residential properties
Office of the Registrar General
Level 7, McKell Building
2-24 Rawson Place
SYDNEY NSW 2000
1300 318 998
+61 2 9219 3600 – international
ORG-Admin@customerservice.nsw.gov.au
www.registrargeneral.nsw.gov.au
Copyright
© Crown in right of New South Wales through Office of the Registrar General 2022.
This copyright work is licensed under a Creative Commons Australia Attribution 4.0 licence,
http://creativecommons.org/licenses/by-nd/4.0/
Disclaimer
This information is correct at the date of publication; changes after the time of publication
may impact upon the accuracy of the material.
Any enquiries relating to this publication may be addressed to Office of the Registrar
General: ORG-Admin@customerservice.nsw.gov.au.
3
Table of contents
Minister’s Foreword ................................................................................................................................................................................4
1. Introduction .................................................................................................................................................................................... 5
The relevance of off the plan sales to the residential property market ...................................................................................... 5
What is the purpose of this paper? ................................................................................................................................................................. 5
Benefits and risks of off the plan contracts............................................................................................................................................... 5
2015 and 2019 reforms to off the plan contracts .................................................................................................................................... 6
Emerging issues in off the plan – possible new protections ............................................................................................................. 7
Box Hill case study .................................................................................................................................................................................................. 7
2. Pre-conditions to a sale .............................................................................................................................................................. 8
Limits around the sale ........................................................................................................................................................................................... 9
Owning land before selling off the plan ................................................................................................................................................. 9
Evidence of agreement or legal right to own the land .................................................................................................................... 9
Owning land within a certain time period............................................................................................................................................. 10
Limits around development consent and lodging plans for registration ................................................................................... 11
Development applications and development consent ................................................................................................................... 11
Warning statements........................................................................................................................................................................................ 12
Reasonable endeavours requirements for development consent and lodging plans .................................................. 12
Additional disclosure obligations and penalties .................................................................................................................................... 13
Disclosure obligations .................................................................................................................................................................................... 13
Penalties ............................................................................................................................................................................................................... 14
3. Additional sunset events ........................................................................................................................................................... 15
Sunset events .......................................................................................................................................................................................................... 15
4. Estimates of owner contributions to common property expenses in strata schemes ............................................ 16
Disclosure of contribution estimates ........................................................................................................................................................... 16
Remedy for inadequate estimates ................................................................................................................................................................ 17
Statutory review of strata laws ...................................................................................................................................................................... 18
5. Disclosure Statement - additional matters ......................................................................................................................... 20
Shared facilities ..................................................................................................................................................................................................... 20
Embedded network contracts ......................................................................................................................................................................... 21
6. Size of the contract.................................................................................................................................................................... 23
7. How to make a submission ...................................................................................................................................................... 24
Making a submission ........................................................................................................................................................................................... 24
Important note: release of submissions..................................................................................................................................................... 24
Evaluation of submissions ................................................................................................................................................................................ 24
Appendix 1 – Background information ........................................................................................................................................... 25
Appendix 2 – Number of off the plan and residential property sales by financial year .................................................. 26
Appendix 3 – Disclosure Statement (approved form) ................................................................................................................ 27
Appendix 4 – Notice of Changes (approved form) ...................................................................................................................... 28
Appendix 5 – Consolidated list of questions ................................................................................................................................ 29
4
Minister’s Foreword
In 2015 and 2019, the NSW Government introduced additional
protections for purchasers entering into off the plan property
contracts with developers.
The new laws increase disclosure requirements, give purchasers
stronger protections throughout the contract period, provide
them with more remedies in the event a developer seeks
rescinds a contract or fails to deliver on material contract terms.
While we are seeing fluctuations in the property market as NSW emerges from the COVID-
19 pandemic, off the plan contracts are still a popular vehicle for property sales, particularly
in the apartment market.
Concerning cases of developers seeking to exploit the power imbalance between the parties
to the contract continue to emerge. Reports of buyers missing out on their dream homes
because developers are ending contracts before settlement, or where purchasers are still
lacking information they need about their future property, like estimated levy contributions
in strata buildings, need to be addressed.
This discussion paper considers these issues as well as the issues of land ownership and DA
approval in the context of contract rescissions and ‘sunset clauses’. More generally, the
paper seeks feedback on the effectiveness of the current regime and opportunities that
exist to bolster consumer protection in this important segment of the property market.
While we recognise the role of off the plan contracts in the market, the NSW Government
wants to ensure that buyers are protected and confidence in the industry is maintained.
I welcome your feedback on the topics contained in this discussion paper, and any additional
relevant matters.
The Hon. Victor Dominello MP
Minister for Customer Service and Digital Government
Minister for Small Business
Minister for Fair Trading
5
1. Introduction
The relevance of off the plan sales to the residential property market
Off the plan contracts have long been a feature of the property market, helping developers
to secure the backing needed to commit to a project and providing purchasers with an
alternative way to enter the market (see further background at Appendix 1).
Unlike conventional property sales, buying off the plan means purchasers commit to buy a
property before it has been developed or built. Essentially, it is a contract for real estate that
does not exist at the time the contract is signed.
Off the plan contracts can be used for the sale of land in a conventional subdivision, or for a
lot in a proposed strata or community scheme.
Over the past 15 years, the number of residential properties purchased and sold off the plan
has risen consistently (see statistics at Appendix 2). On average, off the plan sales represent
around 6 per cent (and in some years, 10 per cent) of all residential property sales in NSW,
with the average annual growth of off the plan sales being about 20 per cent each year. In
some years, off the plan sales increased by more than 50 per cent, compared to the previous
year.
What is the purpose of this paper?
Purchasers need adequate protections in off the plan contracts, and an appropriate balance
must be maintained between the varying interests of developers, vendors and purchasers
under these arrangements.
This area has seen considerable reform over the last 7 years, but as NSW emerges from the
challenges imposed by the Covid-19 pandemic, it is timely to review those reforms and
consider whether the current legislative framework for off the plan contracts continues to
meet the needs of the community.
This paper considers the effectiveness of the current laws and asks whether appropriate
controls are in place for both a rising and a falling market. It also outlines possible areas of
improvement in response to emerging issues in off the plan transactions.
The Office of the Registrar General invites feedback on the issues discussed in this paper,
and any other aspects of the off the plan contract process that could be improved.
Consultation feedback will inform any proposed changes to the legislative framework.
Benefits and risks of off the plan contracts
For buyers, the off the plan process presents an opportunity to lock in a property at today’s
prices, with settlement to occur months or even years later – a benefit in a rising market or
where the supply of new properties is constrained.
The extended contract period gives buyers time to save and to shop around for the best
mortgage deals; buyers can secure a property on payment of a 5 or 10% deposit and use the
construction period to save for settlement while the property is being built. Purchasers
receive a brand-new property, often with the opportunity to negotiate customised features
or changes to the interior design.
6
For developers, selling off the plan provides some certainty and assurance necessary to
secure project finance. Having purchasers locked in to buy properties at an agreed price
early in the project gives comfort to financiers who will often want to see a certain number
of pre-sales before agreeing to funding.
Off the plan contracts are speculative, made in anticipation of a product yet to be created.
For this reason, the process involves some risk, particularly for buyers who do not have the
opportunity to inspect a property before committing to buy it:
• The decision to buy property is based on the developer’s plans, designs and
specifications, rather than a finished property capable of physical inspection. As the
development evolves and plans change along the way, the final property might not meet
the purchaser’s expectations.
• Construction may be delayed, and settlement might not happen when the purchaser
expects.
• If completion of the building cannot happen by a particular date, the developer may seek
to end the contract under a ‘sunset clause’, or for another reason provided for in the
contract.
Major reforms in 2015 and 2019 were intended to address these risks by strengthening
buyer protections and providing transparency and certainty to the contract process. These
laws introduced a robust disclosure regime and remedies where there are significant
changes to what was disclosed in the contract.
2015 and 2019 reforms to off the plan contracts
In 2015, the Government introduced emergency laws preventing developers from using
sunset clauses to end contracts without an order from the Supreme Court (unless the
purchaser agrees). These changes responded to reports of unscrupulous developers using
sunset clauses to get out of contracts, only to subsequently relist the same property at a
higher price.
1
More extensive changes were introduced in 2019
2
to address growing concerns about the
lack of transparency in off the plan contracts, and that buyers were not getting what they
were promised when they eventually settled the purchase of their new property. The
changes built on the 2015 amendments, by introducing:
• a new disclosure regime, requiring developers of residential off the plan properties to
give a prescribed set of information to purchasers in the contract (Disclosure
Statement)
3
• a requirement for vendors to notify purchasers of changes to what was disclosed, that
are considered ‘material particulars’ (changes that will adversely affect the use or
enjoyment of the lot being sold)
• new purchasers’ remedies for changes to material particulars – including, in some cases,
ending the contract or claiming compensation
1
Conveyancing Amendment (Sunset Clauses) Act 2015 No 62.
2
These changes were introduced by the Conveyancing Legislation (Amendment) Act 2018, which also made
provision to clarify the role of electronic technology in land transaction documents. See also Conveyancing (Sale
of Land) Amendment Regulation 2019.
3
Section 66ZM Conveyancing Act 1919 and then section 4A Conveyancing (Sale of Land) Regulation 2017.
7
• a longer cooling-off period for off the plan contracts, extended from 5 business days to
10 business days
• restrictions to protect the deposit from early release to the developer, which require this
to be held in a trust or controlled money account during the contract period
• stronger sunset clause protections for purchasers, including to allow the Supreme Court
to award damages to a purchaser even where the Court permits the vendor to rescind.
Emerging issues in off the plan – possible new protections
This discussion paper asks whether there is a need to further strengthen protections for off
the plan purchasers or otherwise improve the legislative framework. Despite the 2015 and
2019 reforms, ongoing risks for buyers may need to be addressed or mitigated. Contracts
are often long and complex documents, making it difficult for purchasers to properly weigh
up the likelihood of the project proceeding within a realistic timeframe. This paper also
considers whether there are preconditions that should be required before a developer can
offer land for sale, or whether there are further required disclosures, to give purchasers
more clarity about their purchase.
Box Hill case study
4
4
See https://9now.nine.com.au/a-current-affair/sydney-property-developer-off-the-plan-dep-box-hill-futurity-
rise-warnings/3ef4083d-fde4-46c2-b0a3-59cfee611523.
DEP Box Hill Pty Ltd offered land for sale in the Futurity Rise Estate, at Box Hill. The land
was offered for sale off the plan, so it was conditional on certain events taking place.
As with all off the plan contracts, the contract was conditional on a plan of subdivision for
the land being registered before a certain date. But the contract was also conditional on
other events, including –
• the developer becoming owner of the land – because the developer had not secured
ownership of the land before offering to on-sell.
• development approval from the local Council – because the developer had not even
lodged a development application.
Ten months or so after the contracts were exchanged the developer still did not own the
land and still did not have development approval. Using the contract terms, the developer
reportedly rescinded a number of contracts for sale. Acquiring the land and obtaining
development approval are not ‘sunset events’ – so are not covered by the current sunset
clause protections. The contracts were able to be brought to an end without the
purchaser’s consent and without an order of the Supreme Court.
The affected purchasers were able to recover their deposits and any stamp duty paid.
However, they had lost the opportunity to buy an alternate property for a similar price -
property prices had increased considerably between 2019 when buyers committed to
purchase, and 2021 when the developer rescinded the contracts. Buyers also lost the
benefit of having deposit monies in their own accounts, earning interest.
8
2. Pre-conditions to a sale
In NSW, a vendor can enter an off the plan contract very early in the development process
5
-
before the plan is registered, before development approval has been granted, and even
before the vendor becomes the registered owner of the land that is to be subdivided (as
demonstrated by the Box Hill example).
There are many reasons why developers might sell off the plan before acquiring all the
development lands. These include:
• where pre-sale contracts and debt funding are needed to acquire the land to be
subdivided, which reduces commercial risks and is often a requirement for financiers
• where joint venture arrangements have not yet been finalised
• where a road closure or land swap needs to be finalised to consolidate the development
site
• in the redevelopment of paper subdivisions
6
or in master-planned developments, where
the development land is secured under long-term agreements with landowners.
7
In many of these cases, the off the plan contracts are signed in advance of the underlying
legal agreements being completed (and sometimes settlements occur simultaneously).
Securing pre-sales early in the development has advantages for developers and their
financiers but purchasers face substantial risks, without any real way of assessing the level
of that risk. The contract will include provisions making the sale conditional on the developer
acquiring the development land or obtaining planning approval, providing notification (of
sorts) to the buyer. But, with the length and complexity of many off the plan contracts, this
level of notification is generally not effective disclosure.
As well as this, the purchaser has no way of knowing the likelihood of the developer’s
acquisition being successful or the proposed timing for submission of development
approval.
All of this suggests a need for further protections for buyers, whether in the form of
additional, more explicit disclosure, in clearer timeframes for pre-condition events or,
potentially, a prohibition on sale before a minimum level of development readiness is
achieved.
Potential options for additional protections are considered below.
5
Section 66ZL Conveyancing Act 1919.
6
For example, see the Riverstone Scheduled Lands project https://www.landcom.com.au/places/riverstone-
scheduled-lands/.
7
This example does not apply to all developers, but in particular circumstances involving Landcom, the Planning
Ministerial Corporation or other prescribed authority as the developing authority.
9
Limits around the sale
Owning land before selling off the plan
The Box Hill scenario could be addressed by preventing the sale of residential lots off the
plan until the vendor owns all of the lands that will make up the development site. This
requirement might better meet community expectations that a purchaser should not find
themselves committed (and with a stamp duty obligation) to a contract that is so speculative
that the vendor may never become the owner of the land that has been promised by sale.
The prohibition could be applied to all off the plan contracts for residential property or could
be limited to developments of a particular category – perhaps to developments over a
certain size, above a specified financial threshold or where the consumer risks may be
greater. However, this option could have a significant impact on financing and staging new
residential properties, risking further pressure on the property market and, potentially,
driving up prices. Ultimately, this could negatively affect housing supply to the public.
To address some of these issues, certain exemptions could be catered for. For developers,
exemptions could include:
• selling to another developer, to ensure completion of the development project
• novating a contract to transfer the development project to related companies or third
parties
• entering a joint a venture with another entity
• negotiating to buy an area of closed road.
Separately, purchasers may also need flexibility to novate a contract for sale or on-sell an
off the plan property before it is completed (and before the purchaser has become the
owner of the land). This could be to:
• on-sell the property if they become unable to finance the purchase
• change the purchasing entity – for example, from an individual purchaser to a company,
trust or partnership purchaser
• involve a family member as a co-purchaser
• amend the purchase price, following a renegotiation with the vendor (this could be due to
a problem discovered at inspection or following an appraisal revealing a lower value).
8
Evidence of agreement or legal right to own the land
An alternative to a complete prohibition could be to permit a developer to begin selling lots
off the plan if agreements are in place that will allow the developer to become the future
owner.
Generally, where developers currently sell off the plan before owning all the development
lands, there will be an underlying legal agreement for the acquisition of that land, and a
reasonable expectation that the developer will become the landholder. The developer will
have secured an option agreement with the current landowner, or voluntary contribution
agreements will have been signed for subdivision lands in a proposed redevelopment of a
paper subdivision.
8
Revenue Ruling No. DUT 011: https://www.revenue.nsw.gov.au/help-centre/resources-
library/rulings/duties/dut011.
10
To reflect current practice and give off the plan buyers more certainty, it may be appropriate
to limit the developer’s ability to sell land off the plan to situations where there is an
underlying contract, agreement, or other legal right to acquire the property.
Owning land within a certain time period
Setting clear timeframes around the developer’s acquisition could be an alternative to an
outright prohibition of off the plan contracts before the development site has been acquired.
An example of this type of regime can be found in Western Australia. In 2015 and 2016, the
Western Australian Government consulted widely to understand why developers might
legitimately need to sell off the plan before obtaining title to all of the development land.
9
This led to the introduction of a new regime that permits off the plan sales before the
developer has acquired all underlying land,
10
provided that the contract is conditional upon
the vendor acquiring title within 6 months of exchange (or a later date as agreed).
11
If that
vendor’s condition is not included in the contract, the contract is illegal and void, entitling
the purchaser to recover, from the deposit holder, the deposit paid.
12
There are other protections as well: the contracts must include a warning statement
advising that the developer is not the owner of the land, and a significant penalty applies for
a failure to include the vendor’s condition in the contract (that the vendor will become or will
be entitled to become the owner of the lot(s)).
13
Before imposing a requirement for a vendor to become the registered owner of the land in
NSW within a prescribed period, the Government would have to be satisfied that the
prescribed period would not impose any additional costs or barriers to development and
would not create further uncertainty. Again, relevant exceptions or exemptions may need to
apply.
9
Landgate WA, ‘Proposals for Changes to Section 13’ Consultation Paper, March 2015.
10
See the Sale of Land Amendment Bill 2016 (WA).
11
See sections 13A to 13I Sale of Land Act 1970 (WA). See also similar provisions in s9AE(2) Sale of Land Act 1962
(VIC) where the relevant period is 18 months.
12
Section 13B(3) Sale of Land Act 1970 (WA).
13
Failure to attach the vendor’s condition to a future lot contract is an offence and a fine of $100,000 applies:
s13B(6) Sale of Land Act 1970 (WA).
11
Limits around development consent and lodging plans for registration
Most buyers would expect that if land in a proposed development is being offered for sale
some level of planning approval would have been obtained. At the least, a development
application would be expected to have been lodged, as a check that the development
proposal is potentially achievable under the planning controls.
Development applications and development consent
To address issues like those which arose in the Box Hill scenario, developers could be
required to have made a development application, or obtained development consent, before
being permitted to sell the land. A development application can be made before the
applicant owns the development lands, provided consent of the current owner is given. So, a
precondition linked to a development application could be imposed whether or not the limits
on the developer’s ownership status, as suggested above, are also introduced.
Apart from the financing and staging issues mentioned earlier in the paper, a difficulty with
this proposal is the type of development consent that would be required and the extent of
the proposed development to which the consent would be required to apply.
The type of information that accompanies a development application will vary depending on
the proposal and site.
14
This may include the owner’s consent (if the developer is not the
owner), a Statement of Environmental Effects, architectural plans and elevations, site survey
and analysis, an energy efficiency report for a new home, other plans such as drainage
plans, and specific specialist or technical reports required by State agencies.
15
There could be a requirement that, before selling, consent for a concept development has
been obtained (or an application lodged) for the overall development site. Obtaining
development consent earlier in the transaction would mean earlier consideration by the
relevant council and may raise issues that could delay or prevent registration of the plan(s)
and, ultimately, completion.
A concept development application, formerly known as a ‘staged’ development application,
sets out concept proposals for the development of a site. A concept development
application may have one or more subsequent development applications and may set out
concept proposals for the first stage of development with further detail to be submitted as
part of any subsequent stage development application(s).
16
A consent for a concept development application does not authorise development on the
site unless details were provided in the development application and no further consent is
required. Further, information about the various stages of development required to be
included in a concept development application may be deferred to a subsequent
development application, with the approval of the consent authority.
17
Anecdotal evidence
14
See https://www.planning.nsw.gov.au/Assess-and-Regulate/Development-Assessment/Your-guide-to-the-DA-
process/Development-assessment-and-construction-approval-processes/Stage-1-Pre-lodgement-Getting-it-
right-at-the-start.
15
As above. See also Part 3 Environmental Planning and Assessment Regulation 2021.
16
Section 4.22 Environmental Planning and Assessment Act 1979.
17
Section 33 Environmental Planning and Assessment Regulation 2021.
12
suggests that it is for this reason that many developers will not obtain consent for an overall
concept development.
Even if consent for a concept development application is obtained, developers are not bound
by the concept and are not required to complete the stages set out in the concept approval,
as separate approval is required for those subsequent stages. Nevertheless, a requirement
that a developer obtain consent for a concept development application before land is
offered for sale, would result in some preparedness on the developer’s part. The overall
concept for the development will have been sufficiently advanced to give a purchaser some
certainty as to what development is proposed.
Alternatively, there could be a requirement for a developer to, before selling land off the
plan, obtain consent for development plans relating to the specific stage or part of the site
relevant to the proposed lot(s) to be sold.
18
However, considering the variation and complexity of staged developments, especially those
involving mixed-uses, this could be difficult and possibly unfeasible.
Warning statements
Rather than requiring that development approval be obtained before a sale, more
accountabilities could be required for off the plan contracts entered before planning
approval. Specific warning statements could be required, the developer could be obliged to
provide updates, with the purchaser able to rescind at set points if preidentified milestones
have not been met.
Reasonable endeavours requirements for development consent and lodging plans
In Western Australia, developers can sell before obtaining development approval but must
make all reasonable endeavours to obtain approvals (including development approval, and
other regulatory approvals for the proposed subdivision), and create and lodge the
necessary plan for the proposed subdivision before the expiry of a prescribed period.
19
A similar approach could be adopted in NSW, with prescribed detail around what would be
expected for a developer to meet the ‘reasonable endeavours’ requirement. This would
ensure that the developer could not simply delay or refuse to take any action to obtain
development approval simply as a way of avoiding the contract.
18
See section 4.22 Environmental Planning and Assessment Act 1979.
19
See section 13G Sale of Land Act 1970 (WA).
13
Additional disclosure obligations and penalties
Disclosure obligations
The Conveyancing (Sale of Land) Regulation 2022 prescribes matters that must be disclosed,
warranties that must be made and implied terms that must be included in a contract for sale.
The Regulation could be amended to impose additional requirements for off the plan
contracts that are more speculative. If the developer/vendor is not the registered owner at
the time the contract for sale is entered into, the vendor could be required to disclose this
fact to the purchaser and identify whether underlying agreements are in place to allow the
vendor to acquire title. The vendor could also be required to disclose whether a development
application has been lodged or consent obtained or an implied term to this effect could be
required for all contracts. If disclosure is not made within a specified time the purchaser
would be allowed to rescind the contract.
Alternatively, a statutory warning statement could be prescribed for inclusion in the
contract, as in Western Australia
20
or Victoria. This could warn purchasers upfront that the
vendor is not yet the registered proprietor of the land to be subdivided and emphasise the
importance for purchasers to obtain independent legal advice on the risks of the purchase.
21
Further inclusions that could feature in the statutory warning statement are:
• that the purchaser may negotiate with the vendor about the amount of deposit monies
payable (subject to restrictions)
• that a substantial amount of time may lapse between the day on which the purchaser
signs and the day they become the registered proprietor of the lot
• that the value of the lot may change in that time.
22
In Victoria, failure to comply with requirements for a warning statement allows a purchaser
to rescind the contract at any time before the plan of subdivision is registered.
23
If adopted
20
Sections 13A to 13I Sale of Land Act 1970 (WA).
21
See other prescribed notices in Part 1, Schedule 1 Conveyancing (Sale of Land) Regulation 2022.
22
Section 9AA(1A) Sale of Land Act 1962 (Vic).
23
Section 9AE(2) Sale of Land Act 1962 (Vic).
14
in NSW, similar consequences could apply to a failure to include the statutory warning in the
contract, allowing the purchaser to rescind the contract within a certain period, or another
penalty might be imposed on the developer.
While purchasers can already determine whether a vendor is the registered proprietor by
obtaining a title search and comparing that with the details noted on the contract, this
warning could alert purchasers up front and in plain language to the risks associated with
the vendor not owning land, so purchasers can make an informed decision about proceeding.
However, a concern with prescribing any warning statement is whether purchasers will read
it, and the effectiveness of the statement in an already oversized document.
Penalties
Penalties may be an appropriate way of enforcing compliance with any enhanced disclosure
requirements. These penalties could be prescribed by the Conveyancing (Sale of Land)
Regulation 2022 - making it an offence for a vendor’s failure to meet any conditional sale
obligations.
Before the 2015 and 2016 Western Australia reforms in this space, a breach of the
restrictions on the sale of subdivisional land attracted a penalty of $750. Landgate WA
commented in its consultation paper that this low penalty had not prevented the breach of
that requirement.
24
That consultation and reform led to the increase of that penalty to
$100,000.
25
If this penalty was adopted in NSW, it would still fall within the Local Court jurisdictional
limit,
26
although some change to legislation or regulations may be necessary. However, the
2019 off the plan reforms are still relatively new, and the NSW Government has not received
widespread requests to introduce such a penalty regime. If called for, this option would
require further consultation with the NSW Department of Communities and Justice and the
relevant court(s).
24
Landgate WA, ‘Proposals for Changes to Section 13’ Consultation Paper, March 2015, page 12.
25
See section 13 Sale of Land Act 1970 (WA).
26
Section 29 of the Local Court Act 2007.
15
3. Additional sunset events
Sunset clauses are special conditions in contracts that impose a timeframe on the
happening of a particular event, like registration of the plan or issuing of an occupation
certificate. These clauses allow either party to terminate an off the plan contract, should the
specified event not occur by a particular date. It is not only vendors who have the benefit of
sunset clauses: purchasers can also rescind the contract if the sunset event does not occur,
recovering the deposit paid.
However, sunset clauses can be misused. In 2015, the Government responded to reports of
developers using sunset clauses to rescind purchasers’ contracts en masse, only to re-list
the same apartments at higher prices, taking advantage of a rising property market.
Emergency legislation tightened rules around sunset clauses.
The legislation was amended so that vendors can now only rescind contracts via sunset
clauses with the approval of the Supreme Court, unless the purchaser agrees.
The 2019 reforms strengthened these protections by extending the definition of a sunset
event (which, if this does not occur, allows rescission) to include the issuing of an occupation
certificate, additional to registration of the plan. Changes also confirm that the Court may
award damages if the developer is permitted to rescind under a sunset clause, recognising
that purchasers may suffer a loss, having been out of the property market during the term of
the off the plan contract.
Sunset events
Section 66ZS of the Conveyancing Act 1919 currently defines a sunset event as ‘the creation
of the subject lot, the issue of the occupation certificate in relation to the subject lot, or
another event prescribed by the regulations’.
The Box Hill example above has highlighted other ways that developers are able to end
contracts, without having to seek the Court’s approval. It may be appropriate to expand the
definition of ‘sunset events’ to capture other triggers for ending contracts, like:
• the vendor becoming the registered owner of the lot(s) within a certain prescribed period
after the contract date
• the vendor having lodged a development application(s) and having obtained
development consents
• the vendor having lodged the relevant plan(s) of subdivision for registration.
16
4. Estimates of owner contributions to common property
expenses in strata schemes
An emerging issue for off the plan buyers in strata schemes and mixed-use complexes
relates to the purchaser's liability for ongoing expenses after the purchase has been
completed. Anecdotal reports suggest that purchasers of units in these schemes often do
not fully appreciate that when buying a strata unit, they will also acquire an interest in the
common property of the strata scheme. This comes with an obligation to contribute to the
ongoing costs of maintaining and servicing the scheme. Costs can include building and
grounds maintenance, repairs, supply contracts (such as for utilities), service contracts (such
as for waste disposal, managing agents and building managers) and insurance costs.
This lack of awareness is especially pronounced in purchasers of units bought off the plan,
as the likely extent of those contributions is often unknown at the point of sale.
For existing schemes, the strata records will generally provide a reasonable picture of the
scheme's financial position. By obtaining a pre-contractual strata records search,
purchasers can find out information about current levies, recent building expenses, the 10-
year capital works fund plan and potential issues that may lead to an increase in levies,
before they commit to buy.
Purchasers who buy off the plan generally do not have the benefit of this information when
they enter into the contract, with new owners often only becoming aware of their actual
contributions to common property expenses at the first annual general meeting of the
owners corporation. By this time, the purchase contract will have completed, and any
rescission rights will be lost.
If anticipated common property expenses could be prepared and disclosed earlier in the
development process, potential purchasers may be given a better understanding of likely
ongoing expenses once they own the property. However, any proposal to disclose estimated
contributions should provide a remedy in the event those estimates are later found to be
inadequate.
Disclosure of contribution estimates
The current disclosure regime requires that, before a contract is entered into, developers
provide buyers with a Disclosure Statement that includes key information about the lot and
building, including the plan, the site and terms of easements and other restrictions,
proposed by-laws, and a draft management statement for schemes that contain a part
strata parcel. Developers do not have to disclose financial information or estimates of
contributions before buyers exchange contracts, or otherwise through the contract process.
In Queensland, vendors selling land off the plan (proposed lots) must provide the buyer with
a pre-contract disclosure statement that includes “the amount of annual contributions
reasonably expected to be payable to the body corporate by the owner of the proposed
lot”.
27
Similar requirements exist in the ACT and WA.
28
This kind of requirement could be
27
Section 213(2)(b) Body Corporate and Community Management Act 1997 (Qld).
28
Sections 260(i)-(k) Civil Law (Property) Act 2006 (ACT) and sections 156(1)(c)(v) and (2) Strata Titles Act 1985
(WA).
17
introduced in NSW, to assist off the plan buyers to understand the nature and likely extent
of their ongoing costs.
Before the building is complete it will be impossible to predict exact contributions, but the
developer will be in a position to make an informed estimate of what the contributions will
be, and on what basis. When contracts are prepared, the development concept should be
sufficiently advanced that the developer will know the size of the scheme and the nature of
the building. The extent of the shared facilities should also be known, like the number of lifts
and the nature of any recreational facilities. This detail will allow a reasonable estimation of
insurance, maintenance and capital works fund contributions that would be required.
Remedy for inadequate estimates
As in NSW, remedies for incomplete or inaccurate disclosure statements in Qld, the ACT and
WA are limited to the contract period – ordinarily a right to rescind or terminate the contract
before completion.
29
After the contract period, there is no specific remedy for levy estimates
disclosed at the point of sale, that are later found to be inadequate.
If the Disclosure Statement is to be expanded so that developers provide estimates of levies
and contributions, the current disclosure regime may not provide sufficient purchaser
remedies where estimates are found to be inadequate. This is because buyers will generally
not become aware of the actual contributions until after the settlement of their purchase.
Currently, developers must notify purchasers of any changes to what has been disclosed
before settlement, and purchasers may rescind or, in some cases, claim compensation
before the contract is completed.
Most contractual remedies 'merge on completion', meaning that the right to pursue a claim
against the vendor is extinguished once the purchaser becomes the owner of the property
on settlement.
One solution might be to link to existing protections in the Strata Schemes Management Act
2015. Under that Act, developers must prepare an initial maintenance schedule for the
owners corporation during the initial period, which gives information about costs and
obligations in maintaining the common property. The owners corporation must take that
schedule into account
30
when estimating how much money it will need to credit to its
administrative and capital works funds before the first and each subsequent annual general
meeting.
31
The owners corporation may, within 3 years of the initial period expiring, seek an order from
the NSW Civil and Administrative Tribunal for compensation from the developer where those
estimates are found to be inadequate to meet the actual or expected expenditures of the
owners corporation.
32
However, the Tribunal must not make an order if the developer
29
Section 217 Body Corporate and Community Management Act 1997 (Qld); sections 260A and 260(2)(b) Civil Law
(Property) Act 2006 (ACT); and section 159 Strata Titles Act 1985 (WA).
30
Section 79(4) Strata Schemes Management Act 2015.
31
Section 79(1) and (2) Strata Schemes Management Act 2015.
32
Section 89(1) Strata Schemes Management Act 2015.
18
satisfies the Tribunal that it used due care and diligence in determining the estimates and
levies.
33
If developers were required to prepare estimates earlier than during the initial period and
attach these estimates to an off the plan Disclosure Statement, purchasers would be better
informed about the likely expenses they would have to contribute to as an owner. The
owners corporation's right to pursue a compensation order from the Tribunal could be
expanded to encompass an unreasonable deviation from these estimates disclosed at the
point of sale. This may be sufficient protection for potential owners against estimates that
later need to be revised. This process may also provide a further incentive for developers to
provide more accurate estimates earlier in the development process. However, this is not the
only possible solution. There could be other remedies available to purchasers after
settlement, where the estimated contributions are found to be inadequate.
Statutory review of strata laws
The initial maintenance schedule and accuracy of developer estimates has recently been
considered as part of a broader review of the Strata Schemes Management Act 2015 and
Strata Schemes Development Act 2015. In November 2021, the Government published a
Report
34
setting out 139 recommendations for improvements to the strata laws, including to:
• Introduce further specific requirements regarding the content of the initial maintenance
schedule,
35
with consideration given to the development of a standard form in the
legislation (Recommendation 109)
• Require that an independent review and certification of initial maintenance schedules
and levy estimates set by developers is undertaken and provided to owners corporations
at the first annual general meeting, with the qualifications of expert reviewers to be set
following further sector consultation (Recommendation 110)
• Require that the first 10-year capital works fund plan must have regard to the initial
maintenance schedule (Recommendation 111).
These recommendations respond to concerns in the strata industry and broader community
about the varying quality of developer's initial maintenance schedules, and the impacts of
under-estimating contributions. Consultation feedback suggests that inaccurate
maintenance schedules has led to some initial levies being set too low, providing an
unrealistic indication to potential purchasers about a lot-owner's likely ongoing costs. As a
result, there is often the need to increase levies after the first annual general meeting to
meet realistic maintenance costs, or a reluctance to properly fund those costs through
levies. Over time, this increases the risk of disrepair of common property, costs, and erosion
of asset value.
Currently requiring vital decisions to be decided at the first annual general meeting about
budgets, maintenance schedules, capital works funds, levies etc, may be considered an
overload for lot owners.
33
Section 89(2) Strata Schemes Management Act 2015.
34
Report on the statutory review of the Strata Schemes Management Act 2015 and Strata Schemes Development
Act 2015: https://www.parliament.nsw.gov.au/tp/files/81193/DCS%20-
%20Statutory%20Review%20on%20Strata%20Scheme%20Legislation.pdf.
35
That is, additional to what is currently required in section 29 of the Strata Schemes Management Regulation
2016.
19
20
5. Disclosure Statement - additional matters
Off the plan purchasers are essentially committing to buy property before it exists and, as
we’ve seen, potentially before development approval has been obtained. Purchasers need to
have sufficient information about the final project to give confidence and certainty about the
transaction. To this end, the 2019 reforms introduced a prescribed form of Disclosure
Statement for off the plan contracts, which sets out crucial information about the contract
so purchasers are aware of issues when they commit to buy.
The matters currently required to be included in a Disclosure Statement (see Appendix 3)
include a draft plan prepared by a registered surveyor showing detail prescribed by the
Regulations,
36
such as:
• the proposed lot number and area of the subject lot, and sufficient information to
identify its location
• the site of any proposed easement or profit a prendre affecting the subject lot, and the
site of any proposed restriction on the use of land or positive covenant affecting only
part of the subject lot
• for lots in proposed strata schemes – the draft floor plan and draft location plan.
Other draft documents must also be provided, being:
• any proposed schedule of finishes
• any instrument creating or releasing easements or restrictions on use of land (section
88B), proposed to be lodged with the plan
• for lots in a proposed strata scheme, the draft by-laws
• for lots in a proposed community, precinct or neighbourhood scheme, the
draft management statement, and the draft of any proposed development contract
• for land that comprises or includes a lot in a proposed development scheme, the
draft strata development contract
• for lots in a proposed strata scheme that relates to a part strata parcel, a draft strata
management statement required under section 99 of the Strata Schemes Development
Act 2015 for the registration of the strata plan
• for land that will be subject to a building management statement under Division 3B of
Part 23 of the Conveyancing Act 1919, the draft building management statement.
There may be other matters that should be included in the Disclosure Statement. Some
examples are outlined below.
Shared facilities
As discussed in Part 7 above, when buyers agree to purchase a strata unit off the plan, they
are also agreeing to buy into a building and contribute to expenses through payment of
levies. For strata properties sold off the plan, the Disclosure Statement could set out details
of estimates of contributions that owners would have to pay for common property expenses.
Alternatively, the Disclosure Statement could be required to specify the common property
or shared facilities of the scheme that will attract ongoing costs. This would indirectly
provide purchasers with some indication of the relative costs for which the owners
corporation will be responsible.
36
Outlined in section 66ZM Conveyancing Act 1919 and Part 2, Schedule 1, Conveyancing (Sale of Land) Regulation
2022.
21
Embedded network contracts
Concerns have been raised about the existence of embedded electricity networks in some
strata schemes due to the locked-in nature of embedded network contracts, and as
embedded network providers can charge above-market rates.
Embedded networks involve installation, during construction, of infrastructure required for
delivery of utilities and services creating a private network that is “off the grid”, with
services on-sold to owners within the building. An owners corporation, for a strata scheme
that is serviced by an embedded network, can change embedded network providers (with
difficulty in some instances), but an owners corporation cannot change the embedded
network infrastructure. Commonly, these arrangements relate to electricity networks, but
can extend to a range of services including gas, heating, and internet access.
37
The Strata Review Report identified these issues, which are often not well understood or
known by a buyer or new owner.
38
.
The structuring of these arrangements and lack of
disclosure means that, when offering or agreeing to a purchase price for a strata unit,
buyers may not be factoring in the long-term additional costs that they will have to pay for
the embedded network infrastructure.
The Report recommended the need to remove the ability of the owners corporation to renew
an embedded network agreement after the current 3 year statutory limit on the duration of
those contracts,
39
and the need for more general education about embedded networks.
The Report also recommended:
• A new disclosure obligation to require as a part of any sale of a strata scheme unit,
including off the plan sales, a plain English statement of which services are provided as
an embedded network and what this will mean for residents, including in relation to
access to alternative providers, ownership of the infrastructure, and ongoing capital
costs (Recommendation 122).
40
There could be a requirement for these matters to be included in the Disclosure Statement,
if these details are known and capable of disclosure, at the point of sale for land being sold
off the plan.
While relating predominantly to pricing and safety concerns, the Legislative Assembly
Committee on Law and Safety is separately currently inquiring into embedded networks in
NSW, including the current legal framework regulating embedded networks.
41
37
https://www.ewon.com.au/page/customer-resources/living-in-an-embedded-network.
38
Review Report pages 93-94: https://www.parliament.nsw.gov.au/tp/files/81193/DCS%20-
%20Statutory%20Review%20on%20Strata%20Scheme%20Legislation.pdf.
39
See section 132A Strata Schemes Management Act 2015.
40
Review Report, Recommendation 122, pages 93-94:
https://www.parliament.nsw.gov.au/tp/files/81193/DCS%20-
%20Statutory%20Review%20on%20Strata%20Scheme%20Legislation.pdf.
41
See https://www.parliament.nsw.gov.au/committees/inquiries/Pages/inquiry-details.aspx?pk=2873#tab-
termsofreference.
22
23
6. Size of the contract
There is growing concern about the increasing size of contracts for the sale of land,
particularly off the plan contracts. Purchasers need to be informed about the property they
are contracting to buy, but the volume of information included within the contract may be
having a counter effect, making it difficult to identify the important information.
An off the plan lot sits within a proposed plan of subdivision. Disclosures need to be made
not only about the land as it currently is, but also about proposed developments of that land.
The multiple disclosure documents for the existing land can be hundreds of pages long.
Added to that are lengthy off the plan special conditions, making a bulky contract that it can
take considerable time for the lawyer or conveyancer to review.
It was partly for this reason that the cooling off period for off the plan contracts was
extended from 5 to 10 business days
42
- to provide purchasers with more time to obtain
independent legal advice and to undertake due diligence searches.
Appropriate disclosure of matters about title is critical, especially for real estate that does
not yet exist at the contract date. Rather than buying an asset that can be seen and
inspected, the purchaser of land off the plan is effectively buying an idea that relies on the
terms of the contract, plus the goodwill and expertise of the developer to complete.
For this reason, there is limited scope to remove any of the documents that are currently
required to be added to the contract by the Conveyancing (Sale of Land) Regulation 2022.
Consequently, it may be more appropriate to address the contract size issue by making
enhancements to the Disclosure Statement.
42
Section 66S(3)(a) Conveyancing Act 1919.
24
7. How to make a submission
Making a submission
Anyone wanting to comment on any matter relevant to the off the plan legislative
framework, whether or not it is addressed in this discussion paper, is invited to make a
written submission.
All submissions must be received by 5pm on 23 December 2022.
Submissions may be sent via email to: ORG-Admin@customerservice.nsw.gov.au.
If you wish to submit your comments in paper, please forward these to:
Off the plan review
Office of the Registrar General
Level 7, McKell Building
2-24 Rawson Place
SYDNEY NSW 2000
Important note: release of submissions
All submissions will be made publicly available. If you do not want your personal details or
any part of your submission published, please indicate this clearly in your submission.
Automatically generated confidentiality statements in emails are not sufficient. You should
also be aware that, even if you state that you do not wish certain information to be
published, there may be circumstances in which the Government is required by law to
release that information (for example, in accordance with the requirements of the
Government Information (Public Access) Act 2009).
Evaluation of submissions
All submissions will be considered and assessed and inform any future legislative change, if
necessary, to address issues identified in the consultation process. If further information is
required, targeted consultation will be held before a proposed legislative change is finalised.
25
Appendix 1 – Background information
What is an off the plan contract?
An off the plan contract is a contract for the sale of a residential lot that has not been
created at the time the contract is entered into (signed and exchanged).
43
Essentially, it is
the sale of real estate that does not yet exist or of a premises that is not yet built.
Off the plan contracts can be used for the sale of land in a conventional plan of subdivision
or in a proposed strata or community plan.
Legislative framework
The off the plan contract provisions are embodied in the Conveyancing Act 1919 and the
Conveyancing (Sale of Land) Regulation 2022, both of which are administered by the Office of
the Registrar General.
Other than the prescribed and implied terms in that legislation, the provisions of an off the
plan contract are the subject of private negotiation between the parties to that contract. The
legislation does not govern the conduct of those parties and any other stakeholders.
The Property and Stock Agents Act 2002 and the Australian Consumer Law
44
may also have
relevance to a property transaction. For example, a real estate agent who induces a person
to enter a contract, or misrepresents the property or its features, whether by advertising or
otherwise, could be subject to legal action for payment of a penalty or damages.
45
Although
relevant, these matters are beyond the scope of this discussion paper.
43
Section 66ZL Conveyancing Act 1919.
44
Schedule 2 Competition and Consumer Act 2010 (Cth).
45
See sections 52 and 53 Property and Stock Agents Act 2002 and sections 18 and 30 Australian Consumer Law
Schedule 2 Competition and Consumer Act 2010 (Cth).
26
Appendix 2 – Number of off the plan and residential property
sales by financial year
Financial Year
Number of off the plan
contracts for sale*
Number of residential
contracts for sale*
2021-23 June 2022
13,059
188,871
2020-2021
18,373
239,395
2019-2020
10,082
170,027
2018-2019
17,218
162,195
2017-2018
28,215
208,739
2016-2017
29,022
224,707
2015-2016
23,919
220,276
2014-2015
15,847
220,874
2013-2014
13,237
212,139
2012-2013
6,193
169,943
2011-2012
3,719
151,952
2010-2011
5,551
157,925
2009-2010
3,272
184,507
2008-2009
2,646
165,096
2007-2008
2,675
172,449
2006-2007
2,148
168,340
Note: These figures apply only to house and land packages and strata off the plan contracts.
Some figures are lower than the actual number of off the plan contracts, as this data is
sourced from the matters in which the purchaser seeks a 12-month extension to pay stamp
duty. The more recent figures are also lower than the previous Financial Years, due to
tightening of the rules around this extension.
46
46
See Schedule 3 State Revenue and Other Legislation Amendment (Budget Measures) Act 2017 No 33, which
inserted sub-sections 49A(1A) to (1C) into the Duties Act 1997 and limits a provision that defers liability for duty
(up to 12 months) on an agreement for the sale off the plan of land on which a residence is to be erected.
Version 1.0 – October 2019
Disclosure Statement – Off the Plan Contracts
This is the approved form for the purposes of s66ZM of the Conveyancing Act 1919.
VENDOR
PROPERTY
TITLE STRUCTURE
Will the lot be a lot in a strata scheme?
No Yes
Will the lot also be subject to a Strata
Management Statement or Building
Management Statement?
No Yes
Will the lot form part of a community,
precinct or neighbourhood scheme?
No Yes
If Yes, please specify scheme type:
DETAILS
Completion
Refer to
clause(s):
Is there a sunset
date?
No Yes
Can this date
be extended?
No Yes
Refer to
clause(s):
Does the purchaser
pay anything more if
they do not complete
on time?
No Yes
Provide details,
including relevant
clause(s) of contract:
Has development
approval been
obtained?
No Yes
Development
Approval No:
Has a principal
certifying authority
been appointed?
No Yes
Provide details:
Can the vendor cancel
the contract if an
event preventing or
enabling the
development does or
does not occur?
No Yes
Provide details,
including relevant
clause(s) of contract:
draft plan
draft community/precinct/neighbourhood/
management statement
s88B instrument proposed to be lodged with
draft plan
draft community/precinct/neighbourhood/
development contract
proposed schedule of finishes
draft strata management statement
draft strata by-laws
draft building management statement
draft strata development contract
ATTACHMENTS (s66ZM(2) of the Conveyancing Act 1919)
The following prescribed documents are included in this disclosure statement (select all that apply).
Appendix 3 - Disclosure Statement (approved form)
27
Click or tap here to enter text:
Click or tap here to enter text:
Click or tap here to enter text:
Click or tap here to enter text:
Click or tap here to enter text:
Click or tap here to enter text:
Click or tap here to enter text:
Click or tap here to enter text:
Click or tap here to enter text:
Notice of Changes – Off the Plan Contracts
This is the approved form for the purposes of s66ZN of the Conveyancing Act 1919.
IMPORTANT NOTICE TO PURCHASER:
Information you have been provided about the off the plan property you are buying has changed. The changes may
affect your use or enjoyment of the lot you are buying. If you are materially prejudiced by these changes and you
would not have signed the contract if you knew about them, you may be able to end your contract or seek
compensation.
You should discuss these changes and any actions available to you with your lawyer or conveyancer.
You have 14 days, from being given this notice, to consider the changes and take action.
DETAILS OF CONTRACT
VENDOR
PURCHASER
PROPERTY
DATE OF CONTRACT
DATE OF NOTICE
Method delivered:
DETAILS OF CHANGE(S)
The vendor has become aware that the disclosure statement attached to the contract (select which applies):
Was inaccurate, in relation to a material particular, at the time the contract was signed; or
Has become inaccurate, in relation to a material particular, after the contract was signed.
What has changed?
(Give details about what was disclosed, in what document it was disclosed, and what has changed. Attach the change that will
amend the disclosure documents).
NOTE: A material particular includes a change to information in the disclosure statement and documents
attached to that statement that will, or is likely to, adversely affect the use or enjoyment of the lot you are buying.
See section 66ZL of the Conveyancing Act 1919 and section 24 of the Conveyancing (Sale of Land) Regulation 2022.
The change(s) relate to a material particular in the following attached document(s) (select which applies):
Draft plan
A provision of draft by-laws
Easement or covenant
Schedule of finishes
Strata management statement
Building management statement
Management statement for a community, precinct or
neighbourhood scheme
Strata development contract
Development contract
Other (specify)
Appendix 4 – Notice of Changes (approved form)
28
Click or tap here to enter text:
Click or tap here to enter text:
29
Appendix 5 – Consolidated list of questions
1. Are further protections required for off the plan contracts that are conditional on events,
such as land acquisition or planning approval, that are not protected by the sunset
clause provisions?
2. Should developers be required to own land intended to be subdivided for residential use
before exchanging contracts for an off the plan sale, and why? If so, what exceptions
should apply?
3. Would a 6 month, or other, prescribed period in which a vendor must become the
registered owner of land intended to be subdivided for residential use (like in WA), be
feasible and why? If so, what consequences should apply for failing to meet this
requirement? What exceptions to this requirement should apply?
4. At what point in the development approval process should residential land be able to be
offered for sale?
5. Is there a minimum level of development approval that should be obtained (for example,
concept approval)?
6. If land is able to be sold before development approval, should a statutory requirement be
imposed requiring a developer to make reasonable endeavours to obtain that approval?
7. What other measures should be considered to better protect purchasers, while providing
flexibility for developers?
8. What, if any, additional disclosure obligations should apply to off the plan contracts?
9. Should penalties apply for a vendor’s failure to meet any conditional sale obligations? If
so, what obligations should attract a penalty and what would be an appropriate
maximum penalty amount?
10. Are the existing protections in the sunset provisions sufficient? What, if any, changes are
required?
11. Should the definition of ‘sunset event’ be expanded to provide clarification and reduce
the likelihood of delays in completing the contract? If so, what should that expansion
encompass?
12. Should the off the plan Disclosure Statement contain information about likely expenses
and contributions that a lot owner will be required to make after settlement? If not, why
not?
13. If the Disclosure Statement is to include information about likely expenses and
contributions as set out in Question 12, what information is necessary to provide a
reasonable estimate of those contributions?
14. In what circumstances might it be reasonable for an estimate of contributions given in
the contract to be later revised?
15. What remedies should be available to purchasers after settlement where the estimated
contributions are later found to be inadequate, and why?
16. Is there any matter disclosed in the Disclosure Statement that shouldn’t be, or any
matter not yet disclosed that should be?
17. Are there any other improvements that could be made to the off the plan disclosure
regime?
30
18. Is the 10 business day cooling-off period adequate? Please explain your answer.
19. Should there be a mandatory requirement for electronic off the plan contracts to include
a one-page summary or contents of the contract that is electronically searchable?
Please explain your answer.
20. Are there any other improvements that could be made to off the plan contracts and
transactions, or issues that require addressing, that have not been raised in this paper?