The Night Before Christmas - A Cautionary Tale

‘Twas the night before Christmas and all through the office Kris, the Transactions Manager, at Kringle Developments Pty Ltd, was panicking. Kris realised he had several sale contracts to be executed by 31 December 2021, with settlement to occur on 8 January 2022. The sole director and secretary of Kringle Developments, Mr Rudolph, was due to go to the North Pole in two days’ time and would be away for the rest of the year…

With the holiday season upon us, the desire to finalise transactions and complete settlements before the Christmas closure is a high priority.  

As 2021 comes to an end, we have set out a few matters to consider before jetting off to the North Pole.

Power of Attorney

A simple way to avoid delays in exchange of contracts is to arrange a power of attorney.  

A power of attorney is a legal document in which the donor (i.e., Kringle Developments Pty Ltd) appoints an attorney (i.e., Kris) to act on behalf of the company. The document will authorise Kris as the attorney to make certain decisions. An attorney can have either limited authority or extensive authority to make decisions for the donor, such as signing documents like a transfer of land, sale contract or lease.

Where the relevant signatories may be travelling and are unable to attend to execution of documents, we strongly recommend preparing a power of attorney.

Banks

With settlements increasing exponentially in the lead up to festive season, banks are attending to thousands of mortgage applications and discharge of mortgage requests.  Not only this, but national banks will also often liaise with, and require, their Melbourne and Sydney offices to prepare the relevant documentation (whether that be a mortgage document, discharge of mortgage or security release).  The time differences between Western Australia and the other States and Territories due to daylight saving add to the complications when dealing with parties outside Western Australia.

Please ensure that you contact your bank in a timely manner, well in advance of your anticipated settlement date.

Time Periods and Deadlines

Despite most offices closing over this period, the automated ‘out of office’ reply email does not stop contractual deadlines.

This year in Western Australia, there are three business days between Saturday, 25 December 2021 and Tuesday, 4 January 2022. A business day means a day other than a Saturday, Sunday or public holiday in the place where the thing is to be done. If something has to be done in a place outside Western Australia you need to check the business day definition for that place.

We recommend reviewing your contract to:

  • clarify whether the time periods relate to days or business days; and
  • confirm the governing law (for example, the law of Western Australia or the law of Victoria).

This is because, as outlined above, public holidays can vary from State to State.

It is important that you diarise, and keep note of, critical dates (such as the date of payment of a deposit under a sale contract or the date a sale contract must be lodged with the Office of State Revenue for duty assessment), to avoid a breach of contract or penalty fees.

In addition, a designated person from your office should review any incoming mail and relevant inboxes to ensure that you do not miss any important notices that are served during your office closure period. For example, where you are a tenant and have defaulted on your obligation to pay rent, you may be served with a notice of default during the holiday period. These types of notices often require rectification of the default within a short period of time. 

With all of this in mind, it is important that you get your affairs in order before the Christmas closure period. Enjoy your break but, be warned, the law takes no holiday!

Lavan wishes you and all your loved ones a Happy Christmas and a prosperous New Year!