Funding

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Exclusive funds management company, CF Property Capital, has announced its Chiodo Diversified Property Fund has hit $50 million in funds under management (FUM), receiving a 5-crown rating from Financial Express.
With over 300 notable investors involved, CF Property Capital started raising funds in late 2016.
CF Property Capital’s Executive Director, Ilya Frolov said, “In the Investment Centre of the Money Management Fund Database, we’re the only 5-crown rated property fund (listed and direct) to be returning a positive return on investment this year."
“This year we’re planning to finalise and complete three projects, which means dividends back to our investors as well recycling the funds into new projects and developers,” says Frolov.
Despite Covid-19 affecting the industry and investor confidence, Ilya is expecting a rebound later this year.
“We’re seeing an impact that sits somewhere between 5 per cent per quarter that is locked down. If the lockdown is released and people can get back to some form of normality, the property prices will stay at the 5 per cent drop."
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“We’re also looking at the immigration situation closely and travel restrictions, which are highly correlated with the demand for new and existing residential properties. Once international travel restrictions and immigration borders are open, we will most likely see a rebound to above pre-COVID-19 figures.”
Principal Paul Chiodo said CF Property Capital has proven itself to be a consistent and fruitful investment option compared to most alternatives, nationally.
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j.ballantyne1990-6AQqhLzZaK

CF Property Capital receives 5-Crown rating forecasting market rebound

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Hometime, Airbnb’s leading property management partner in the APAC region, has raised a further $6.7 million on top of a recent $6 million funding round completed in May 2019.
The round includes NAB Ventures, backed by one of Australia’s largest banks.
In addition, Hometime has completed two more acquisitions in the most recent quarter - Host My Home in Cairns and bnbpal in Melbourne.
NAB Ventures and AS1 Growth Partners said Hometime’s rapid expansion combined with its scalable business model in a high growth sector attracted them to the company.
Further, a strategic alignment between National Australia Bank and Hometime businesses could see NAB’s retail customers access Hometime’s services to build alternative income streams for their investment properties.
Co-Founder &amp; COO of Hometime, William Crock, said Hometime will use the additional funds to rapidly accelerate growth through acquisition and market expansion - both in Australia and internationally.
Mr Crock said, “the global short stay property rental market will approach US$115 billion in 2019 compared to approximately US$40 billion in 2010 representing an average annualised growth of 13%. As the largest and fastest growing operator in Australia we plan to capitalise on these tailwinds and drive further growth over the coming years as the market matures and consolidates."
“Hometime now supports home owners in nine cities across Australia and New Zealand with many more on the horizon," he added.
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Australian Airbnb property management startup Hometime raised another $6.7 million

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GUEST OBSERVATION
Banks’ funding costs increased a little over 2018, driven by a rise in the cost of wholesale funding linked to money market rates, but with some offset from reductions in the cost of retail deposits. Most lenders passed the increase in funding costs through to their lending rates, including for mortgages. Nevertheless, funding costs and lending rates remain low by historical standards.
Funding costs typically influence lending rates
The rates that banks offer on loans to households and businesses are partly driven by the cost of their funding. Banks also take into account the risks inherent in lending, such as the credit risk associated with loans and the liquidity risk involved in funding long-term assets with short-term liabilities. Competition in the financial sector, banks’ growth strategies and the rate of return desired by equity holders also affect their lending rates.
The level of the cash rate is an important determinant of banks’ funding costs (Graph 1). This is because the cash rate acts as an anchor for the broader interest rate structure of the domestic financial system. The pass-through from the cash rate to funding costs and lending rates is an important channel of monetary policy transmission. Nevertheless, there are other factors that influence funding costs, such as changes in the level of compensation required by investors for holding bank debt. The full effect of such changes can take some time to flow through to funding costs and lending rates. This article updates previous Reserve Bank research, focusing on developments in major banks’ funding costs and lending rates over 2018.
<div class="image-graph">
<div class="title">Graph 1</div>
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-01.gif" alt="Graph 1: Cash Rate and Funding Costs">
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The cost of banks’ funding increased a little over 2018, driven by the higher cost of raising funds in wholesale debt markets as a result of increases in money market rates, in particular the rise in bank bill swap (BBSW) rates. The costs of around two-thirds of the major banks’ debt and deposit funding are ultimately linked to BBSW rates, either directly or as a result of their interest rate hedging practices. The major banks’ overall funding costs have increased by less than money market rates because of the decline in interest rates on retail deposits, which account for around one-third of their non-equity funding.
Most lenders, including the major banks, have passed the increase in funding costs through to their lending rates. However, the average interest rate on outstanding housing loans increased only a little toward the end of 2018, and by less than the increases in banks’ standard variable rates (SVRs) for housing loans. This owed in large part to strong competition for low-risk borrowers, as observed through the larger discounts that banks offered from their SVRs. Rates on loans to businesses also increased, particularly for large business loans, since many of these loans are linked to BBSW rates. Despite the increases, both funding costs and lending rates remain historically low, consistent with the low level of the cash rate.
Banks’ funding composition was little changed over 2018
Banks obtain funding from four main sources: retail deposits, wholesale deposits, wholesale debt and equity. Excluding equity, around one-third of major banks’ funding is from retail deposits. These are sourced from households and small- to medium-sized businesses. Another third of non-equity funding is from wholesale deposits, such as those from large corporations, pension funds and the government. Short- and long-term wholesale debt account for most of the remaining third of funding. The composition of major banks’ funding was little changed over 2018 (Graph 2).
<div class="image-graph">
<div class="title">Graph 2</div>
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-02.gif" alt="Graph 2: Major Banks Funding Composition">
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In aggregate, deposits account for around two-thirds of major banks’ non-equity funding. This share has been relatively stable over recent years, following a large increase in the share of deposits in the aftermath of the global financial crisis. That increase was consistent with banks seeking more stable funding, particularly from term deposits (Graph 3). The introduction of new liquidity regulations – such as the Net Stable Funding Ratio requirement that came into force at the start of 2018 – has also supported the banks’ demand for stable funding over recent years. Deposit growth slowed in 2018, in line with the generally subdued growth in banks’ assets.
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<div class="title">Graph 3</div>
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-03.gif" alt="Graph 3: Deposit Growth">
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The share of funding sourced by the major banks from wholesale debt markets was little changed over 2018. Within this, the major banks shifted their funding slightly, moving away from short-term debt toward long-term debt (Graph 4). A large share of wholesale debt funding for the major banks is sourced from offshore markets, mainly in US dollars. Australian banks transform most of these foreign-currency denominated exposures into Australian-dollar denominated exposures using the cross-currency swap market. As a result, Australian banks are far less sensitive to changes in interest rates in other jurisdictions than their share of offshore funding may suggest.
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<div class="title">Graph 4</div>
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-04.gif" alt="Graph 4: Major Banks' Wholesale Debt">
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The share of funding from equity has been stable
In addition to deposits and debt, banks obtain a small portion of their funding from equity. The share of funding from equity has been stable over recent years. Since mid 2015, banks have increased their stock of equity funding by around $40 billion. This was largely in response to changes in prudential regulations that have increased the average mortgage risk weights, and therefore the amount of capital that banks are required to hold. The major banks continue to indicate that they are on track to meet the Australian Prudential Regulation Authority’s (APRA) increased ‘unquestionably strong’ capital benchmarks by 2020 (as expected by APRA). Distinct from its ‘unquestionably strong’ benchmarks, APRA consulted on plans in late 2018 to implement a loss-absorbing capacity regime in Australia from 2023 (APRA 2018).
Banks' funding costs are a little higher than in recent years but remain low
We estimate that overall debt and deposit funding costs for the major banks increased by around 10 basis points over 2018 (Graph 5). This was driven by increases in the costs of wholesale debt and wholesale deposits. Nevertheless, funding costs remain low by historical standards.
<div class="image-graph">
<div class="title">Graph 5</div>
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-05.gif" alt="Graph 5: Major Banks' Funding Costs">
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The cost of wholesale funding increased …
Wholesale funding – which includes both wholesale debt and wholesale deposits – accounts for around two-thirds of major banks’ non-equity funding. Wholesale funding costs tend to be roughly linked to BBSW rates, which increased in 2018 (Graph 6).
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Graph 6
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-06.gif" alt="Graph 6: Bank Bill Swap Rates">
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BBSW rates measure the cost for highly rated banks in Australia to issue short-term bank paper with tenors of up to six months. These rates are some of the key interest rate benchmarks for the Australian dollar and are widely used as reference rates in contracts including derivatives, loans and securities (Alim and Connolly 2018). BBSW rates are heavily influenced by expectations for the cash rate, although they are also affected by other factors, including developments in offshore money markets and changes in the demand for short-term bank paper from investors.<a id="r1" href="https://www.rba.gov.au/publications/bulletin/2019/mar/developments-in-banks-funding-costs-and-lending-rates#fn1"> </a>
The cost of wholesale debt for Australian banks is ultimately linked to BBSW rates either directly or as a result of their interest rate hedging practices. In addition to issuing floating-rate Australian-dollar denominated debt (at a spread to BBSW rates), banks swap much of their foreign-currency denominated or fixed-rate debt into Australian-dollar floating-rate exposures by using derivatives that typically use a BBSW rate as the reference rate. These hedging practices better align movements in the rates on Australian banks’ funding with those that they receive on their assets, which consist largely of loans that are variable rate and denominated in Australian dollars. Rates on wholesale deposits also tend to be closely linked to BBSW rates. In particular, wholesale term deposits are close substitutes for bank paper of the same tenor, so the rates offered on these deposits tend to move with BBSW rates.
Wholesale funding costs moved broadly in line with BBSW rates over 2018, with BBSW rates around 20 basis points higher than their average in 2017 (Graph 6). In particular, BBSW rates rose noticeably toward the end of the March, June and December quarters, as did other short-term money market rates in Australia and offshore. Most of the impact of a change in BBSW rates flows through to wholesale funding costs in three to six months, with the time frame varying between banks based on the maturity profiles of their short-term debt, wholesale deposits and interest rate hedging instruments. The increases in BBSW rates were reflected in higher costs for outstanding short-term and, to a lesser extent, long-term wholesale debt. Nevertheless, wholesale funding costs remain low relative to recent history (Graph 7).
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Graph 7
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-07.gif" alt="Graph 7: Major Banks' Wholesale Debt Costs">
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A few factors other than BBSW rates also put upward pressure on the cost of wholesale debt in 2018, although their contributions were relatively small. The major banks’ wholesale debt that is issued offshore was affected by increases in cross-currency basis swap spreads, which measure the cost of swapping foreign-currency exposures into Australian-dollar exposures. In particular, the major banks’ cost of sourcing short-term debt funding in US dollars and swapping it into Australian dollars increased by a little more than the increases in BBSW rates (Graph 8). Nevertheless, Australian banks may still prefer to issue offshore – even when it appears to be relatively more expensive – to diversify their funding base (Kent 2018). The slight shift in the composition of wholesale debt from short term to long term added a little to funding costs, along with an increase in the average original tenor of the major banks’ long-term debt.
<div class="image-graph">
<div class="title">Graph 8</div>
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-08.gif" alt="Graph 8: Major Banks Marginal Cost of Short-term Debt">
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Banks continued to issue wholesale debt at relatively low yields in 2018. Australian banks issued bonds at a similar pace to previous years, with around $115 billion of bonds issued in the year. Net issuance, which takes into account bond maturities, was high in 2018, with issuance outpacing scheduled maturities by around $25 billion. Although spreads to benchmark rates for the major banks’ bonds widened over 2018, yields remained little changed around the low levels of recent years (Graph 9).
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<div class="title">Graph 9</div>
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-09.gif" alt="Graph 9: Major Banks Bond Pricing">
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… but this was partly offset by a decrease in the cost of retail deposits
Major banks’ funding costs increased by less than money market rates because the cost of retail deposits declined. Major banks’ overall deposit costs therefore fell over 2018, even though wholesale deposit rates increased (Graph 5). The decline in the cost of retail deposits was in large part due to substantial reductions in all of the major banks’ base rates on online savings accounts (excluding any ‘honeymoon’ or introductory bonus rates) (Graph 10). Honeymoon rates on online savings accounts were little changed. Partly offsetting this, there was a small increase in the major banks’ average rate on bonus savings accounts. Major banks’ advertised rates on retail at-call deposits remain low relative both to historical rates and to rates currently offered by non-major banks.
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Graph 10
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-10.gif" alt="Graph 10: Major Banks' Retail Deposit Rates">
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Although rates on new retail term deposits were little changed over 2018, the cost of outstanding term deposits fell slightly because some term deposits that were contracted at higher rates in earlier years have since been replaced by term deposits at lower rates. However, the impact of this on overall funding costs was somewhat offset by a change in the mix of deposits toward term deposits, which typically have higher interest rates than at-call deposits.
Banks increased their lending rates a little, but they remain low
Most lenders passed the increase in funding costs through to their lending rates for households and businesses. But lending rates remain low, consistent with funding costs and the cash rate.
Interest rates on housing loans rose a little for many borrowers over 2018. Most banks increased their SVRs on housing loans in the second half of 2018 by around 10–15 basis points. The banks generally attributed the increases to higher funding costs. However, the average interest rate on outstanding variable rate housing loans increased by only a few basis points over the second half of the year (Graph 11). This was partly because not all lenders raised their SVRs in that period; one of the major banks increased its housing SVRs in early 2019. In addition, interest rates on new housing loans continued to be significantly lower than interest rates on outstanding loans, which provides an indication of the strength of competition for low-risk borrowers. Some existing borrowers refinanced at a lower rate with a different lender or renegotiated the rate of their loan with their existing lender. Moreover, advertised interest rates on fixed-rate housing loans, which account for around one-fifth of outstanding housing credit, declined throughout 2018.
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<div class="title">Graph 11</div>
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-11.gif" alt="Graph 11: Variable Housing Interest Rates">
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Interest rates on outstanding loans to large businesses are estimated to have increased by around 35 basis points over 2018, reflecting in part the increases in BBSW rates (Graph 12). Most loans to large businesses are linked to BBSW rates. Rates on loans to small businesses were little changed over the year, though they remain noticeably higher than those for large businesses. Some banks increased their advertised rates for small businesses toward the end of 2018, citing higher funding costs.
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Graph 12
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-12.gif" alt="Graph 12: Variable Business Lending Rates">
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Banks’ implied lending spread narrowed a little
A bank’s implied spread on its outstanding lending is the difference between its average lending rates and overall funding costs. We estimate that this spread narrowed slightly for the major banks over 2018 (Graph 13). The implied lending spread did not narrow by as much as the increase in funding costs because much of this increase was passed through to an increase in lending rates, including for mortgages and large business loans.
<div class="image-graph">
<div class="title">Graph 13</div>
<img src="https://www.rba.gov.au/publications/bulletin/2019/mar/images/graph-0319-2-13.gif" alt="Graph 13: Major Banks Funding Costs and Lending Rates">
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The implied lending spread differs from some commonly reported measures of bank profitability (for example, the net interest margin), because it excludes the returns on banks’ other interest-earning assets, such as high-quality liquid asset holdings. Yields on some of the banks’ liquid assets rose over 2018, consistent with increases in BBSW rates. The effect of this was to dampen the impact of higher funding costs on banks’ net interest margins.
Susan Black and Dmitry Titkov are from Domestic Markets Department at the Reserve Bank of Australia (RBA). 
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Developments in Australia banks' funding costs and lending rates: RBA Bulletin 

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In 2017, Australian unlisted property funds performed three times stronger than Australian equities, averaging total returns of 23.4% for the calendar year.
In its quarterly report, Zenith Investment Partners, MSCI and the Property Funds Association said that unlisted property funds delivered a total return of 23.4% for the year to 31 December 2017 compared to the 7.7% return from Australian equities. 
Maarten Broek, Executive Director at MSCI, said that unlisted property funds also outperformed most other asset classes on a risk-adjusted basis. 
<img src="https://www.urban.com.au/images/2018/2/26/unlisted.png" alt="">
“Property as an asset class is delivering strong returns driven by investor demand and supported by rental growth, particularly in the Sydney and Melbourne office markets.  
“Although yields have compressed over the last few years, Australian property returns still have a high income return component, relative to both other global property markets and other asset classes.
Mark Lumby, Head of Commercial Property at Australian Unity, said Australian Unity’s unlisted property funds continue to deliver investors stable income returns, consistent with the report’s findings.
“The performance of our funds is driven not only by market conditions but also, through the application of our experience and active asset management, which includes redeveloping existing assets to generate a higher income and capital growth profile for our investors."
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Unlisted property funds Australia's best performing asset class in 2017

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Credit Suisse has provided a $100 million funding facility to Lannock Strata Finance.
Lending to body corporates to fund strata improvements, such as repairs, renovations, renewals and defect rectification is an emerging, but highly specialised area.
Lannock managing director Paul Morton founded Lannock 14 years ago.
It finances capital works for strata blocks around Australia for litigation and also re-development.
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<div class="related-quotes section">Morton told Fairfax Media the growth potential for strata loans was significant given the age and deteriorating condition of much of Australia's apartment stock.</div>
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"The capital value of these apartment buildings will diminish without investment in renovation or improvement and that's bad for owners," Mr Morton said.
"It is a small market segment at the moment but we are buying into the growth story," Credit Suisse managing director Will Farrant said.
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The corporate advisory group Aura Capital become a significant shareholder in Lannock last year.
NSW has some 775,000 strata lots, followed by Victoria (750,000), Queensland (410,000), WA (285,000), SA (270,000), ACT (46,000), Tasmania (34,000) and NT (18,000), figures from Strata Community Australia show. 
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Credit Suisse boosts Lannock Strata Finance capacity

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Wingate Investment Partners Trust (WIP) fund has reached $270 million in funds under management in five years and the firm predicts it will grow to $1 billion.
Wingate managing director Ryan Levin attributes WIP’s success to its investment philosophy of having its own skin in the game – investing its own balance sheet and its principals’ and shareholders’ capital in deals together.
The WIP funds have delivered investors double digit returns consistently.
As the global economy continues to operate in an historically low interest-rate environment, sophisticated investors are seeking new options with a proven track record, without taking on greater risk.
WIP offers a diversified portfolio of secured debt with contractually determined outcomes, offering consistent double digit returns that are uncorrelated to volatile and uncertain financial markets.
If the risk isn’t good, Wingate won’t invest.
Wingate’s success has attracted high networth individuals and institutional investors across its four business arms: funds management, consumer finance, property lending and private equity.
Wingate says it currently has interests in a pipeline of more than $1 billion worth of Gold Coast high-rise apartments, and has recently financed deals including a $68 million redevelopment of a Byron Bay shopping centre and in its private equity business the firm launched Up&amp;Go in British supermarkets in 2015.
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Wingate's Investor Partners Trust funds under management reach $270 million

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GUEST OBSERVER
After a series of well publicised instances of developers exercising their rights of contract rescission under ‘sunset’ provisions – the NSW state government moved to tighten guidelines restricting the ‘out clauses’ and were duly reinforced by the NSW Supreme Court’s first common law ruling under the new legislation.
Sunset clauses are common place in off the plan contracts of sale – being the contract of the sale for as yet unregistered lots (mostly new strata apartments or land sub-divisions). Often off the plan sales are agreed prior to the commencement of construction of a new development project and may even form a pre-requisite for funding of the project.
The sunset provisions are included in the contract to essentially protect both vendor and buyer from being potentially locked into an agreement ad infinitum -  that is; should there be a substantial delay in the developer being able to deliver the completed product; a date is agreed in the terms of the contract as the ‘sunset date’ and thereafter either party is able to rescind the contract and walk away from the agreement rather than being contracted to sell or purchaser forever.
In principle, the notion of a sunset clause seems reasonable; however certain cases involving developers exercising their rights to rescind following delays in completion have received waves of negative press which then have been viewed cynically by the NSW Government – in particular Victor Dominello, Minister for Innovation and Better Regulation.
In particular there has been scrutiny of the Kaymet Corporation development in Wolli Creek and the Samadi Developments project in Surry Hills. In each instance, there were delays in completion and the developers each attested that rising costs had forced them to rescind their current contracts with a view to re-selling the same lots at higher prices. Their premise was that they could not afford to settle the off plan sales at the ‘old prices’ and needed to achieve the improved realisable values to cover their unforeseen inflated costs.
Whilst legal challenges were mounted by the off plan purchasers – the prevailing provisions relating to sunset clauses were deemed to be in favour of the developers. In the matter of Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459 – 34 of the 94 off plan purchasers launched a major class action against the developers. The original sales were entered into between November 2009 and April 2010 with Kaymet issuing rescission notices March 2013.
The matter was heard in the NSW Supreme Court by Justice Stevenson and ruled upon October 2015. Estimates show that a Wolli Creek 2 bedroom unit was worth around $500,000 in 2009/10 and had appreciated to around $900,000 by late 2015. On this basis – Kaymet Corporation stood to increase its bottom line by some $13,000,000 by re-selling the apartments in 2015. Justice Stevenson found that the plaintiffs had failed to show Kaymet had been deficient in its duties. The net result was that Kaymet was allowed to rescind and the plaintiffs were burdened with around $1,000,000 in total legal costs. At the time of writing, Plaintiffs are ongoing with their class action against Samadi Developments.
To a large degree – the exposure to genuinely unforeseen costs or losses and extended delays were why the sunset clauses were originally created; however unhappy purchasers, and evidently Victor Dominello, view in certain instances the exercising of the sunset provisions as a grab for further profits by developers in a rising market. The suggestion is that off plan buyers have been exploited by some developers to get their projects ‘off the ground’ only to unceremoniously dump the sales when there is a big lift in profits available.
And so – what has occurred in response to Mr Dominello’s distaste for this scenario?
On November 17, 2015 the NSW Government passed the Conveyancing Amendment (Sunset Clauses) Act 2015 to provide further protections in favour of the purchasers in off the plan property contracts. The Act inserts Division 10 into the Conveyancing Act 1919 – “Off The Plan Contracts”. Whilst most property-informed parties are familiar with sections 66P to 66Y of the Act (dealing with definition of Residential Property and cooling-off provisions); Division 10 – 66ZL deals with the new rules for the exercising of a sunset clause by a Vendor and can be quickly outlined by reading subsection (3):
 A vendor may rescind an off the plan contract under a <a href="https://emarketing.multiarray.com/_r/c.cfm?l=45055&amp;c=59667&amp;m=23921&amp;b=42687">s</a>unset clause if the subject lot has not been created by the sunset date, but only if:
(a) each purchaser under the contract, at any time after being served with the notice under subsection (4), consents in writing to the rescission, or
(b) the vendor has obtained an order of the Supreme Court under this section permitting the vendor to rescind the contract under the sunset clause, or
(c) the regulations otherwise permit the vendor to rescind the contract under the sunset clause.
Subsection (4) outlines that the Vendor must provide notice of at least 28 days written notice to each Purchaser of their proposal for rescission and reasons why they need to rescind and what has created the delay in completion. Should an agreement be reached with a Purchaser – all is good. If the Purchaser declines to accept the request for rescission – the Vendor must apply to the Supreme Court to rule on the merits of its application. The Act outlines: 
(7) In determining whether it is just and equitable in all the circumstances the Court is to take the following into account:
(a) the terms of the off the plan contract,
(b) whether the vendor has acted unreasonably or in bad faith,
(c) the reason for the delay in creating the subject lot,
(d) the likely date on which the <a href="https://emarketing.multiarray.com/_r/c.cfm?l=45056&amp;c=59667&amp;m=23921&amp;b=42687">s</a>ubject lot will be created,
(e) whether the subject lot has increased in value,
(f) the effect of the rescission on each purchaser,
(g) any other matter that the Court considers to be relevant,
(h) any other matter prescribed by the regulations.
The Vendor may also be liable for any costs incurred by the Purchaser(s) attributable to the application to rescind.
These changes came into effect  and will apply to any off the plan contracts entered into on or after 2 November 2015. In addition any off the plan contracts that have not completed, but were entered into before 2 November 2015 will also be captured. 
Having addressed the essential drafting of the new legislation – focus then immediately turns to the common law/court interpretation and application of 66ZL(7). That is – how will the Supreme Court react to new applications for rescission?
The first test case has been Jobema Developments Pty Limited v Zhu &amp; Others[2016] NSWSC 3.
The facts in brief are that a Purchaser (one of the Plaintiffs) contracted in December 2013 to buy an apartment off the plan in a new Hurstville development of 72 units offered by developer, Xycom. The sunset date for the registration of the strata plan (which occurs following completion and the granting of the project’s Occupation Certificate) was 31 December 2015. The Vendor’s right to rescind was qualified by the requirement to ‘use all reasonable endeavours to have the Strata Plan registered by the sunset date’. The court heard that Xycom, despite having DA consent, carried out very little construction work after entering into the off plan contract(s).
In October 2014, Xycom on-sold the development site to Jobema Developments and this sale was settled in January 2015. The sale was subject to existing off plan sales – which were novated to Jobema. Some, but not all, of the off plan contracts had their sunset date extended. Jobema took an active approach to construction and by December 2015 the project was well progressed. 
A new estimate for completion was set for mid-2017. Prior to the 31 December 2015 (ie sunset date); Jobema approached the Plaintiffs offering to extend the sunset date in return for agreeing to new, higher prices (on the basis of escalated construction costs). The Plaintiffs rejected the offer and Jobema duly issued Notices of Intent to rescind (in accordance with the new 66ZL(4) of the Act).
The matter was presented to the Supreme Court’s Justice Black who ultimately found in favour of the Plaintiffs (the Purchasers). Probably the largest factor weighing against Jobema as developer was that despite their own best endeavours since acquiring the site – they were also burdened by Xycom’s apparent breach of the best endeavours covenant. Jobema had assumed all of Xycom’s obligations under the sales contracts. Justice Black was also concerned that only some Purchasers were offered an extended sunset date and others not. 
This practice brought doubt as to the legitimacy of the application. The court also responded to Jobema arguing that construction funding terms had deteriorated and that the new legislation had not been in effect when Jobema acquired the site by suggesting that each should be considered a “business risk”. 
BCE’s COMMENTS
My own view on this is that the statute has not been fully tested in Jobema v Zhu as the project was adopted by Jobema following Xycom’s extended lack of endeavour to progress the site. The specifics of this matter are not generally applicable. It will be interesting to witness the court’s view in instances of genuine endeavour incurring serious and reasonably unforeseen negative circumstances.
Further, the NSW Governments new legislation has gone some way to endorse sunset clauses. The opportunity existed for sunset clauses to be outlawed altogether; however the passing of the statute in itself conveys that there is deemed a legitimate place for Vendor rescission. We now await a judgement in favour of rescission to provide more clarity on the judicial application of the legislation. 
It will be interesting to see how the court views the Samadi matter given the heightened levels of negative publicity and new legislation. Whilst I remain impartial in any debate on ethics; it would seem to me that the ratio decidendi in both the Kaymet and Jobema decisions would suggest that Samadi had acted within the laws as they existed at the time. Kaymet reinforces this and Jobema’s application was denied partly on the basis that potential changes in legislation should be an assumed “business risk”. Surely this logic is a double-edged sword.
I will also be intrigued to watch whether clever legal minds devise some form of off plan ‘put and call’ style of agreement that operates outside of the Conveyancing Act and therefore may be drafted to essentially re-instate a form of sunset provision. Any such legal pact will also need to satisfy funders as being sufficiently binding.
Finally, whilst the new legislation will undoubtedly afford heightened protection for Purchasers and ideally elevate their confidence to commit to off the plan contracts – there may also become a subcutaneous penalty to Purchasers. Developers may simply factor in an additional margin of risk as insurance against unforeseen negative circumstances – that is that off the plan sale prices may simply become more expensive under the Sunset Clauses Law.
Brad Caldwell-Eyles is principal, 1st City and can be contacted <a href="https://www.1stcity.com.au" target="_blank">here</a>.
This piece first appeared in <a href="https://eliteagent.com.au" target="_blank">Elite Agent</a>.
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jchancellor-FAypfDUnLy

Has the sun set on a developers' window to rescind? Brad Caldwell-Eyles

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GUEST OBSERVER
Governments should open up their transport project funding decisions to greater scrutiny, including tabling an independent cost-benefit analysis in Parliament, recommends a new report from think-tank the Grattan Institute.
The report’s author, Marion Terrill, argues poor project selection is undermining economic growth in Australia. The report shows of the projects receiving Commonwealth funding since June 2012, 58 percent of that funding, or $3.7 billion, was spent on projects without a published project evaluation. This includes the controversial East-West Link, which was ultimately canned by the Victorian government.
The report argues governments should not only build transport infrastructure where the benefits outweigh the costs – they should build all such infrastructure, regardless of where it is based in Australia. This could help address the bias identified in the report towards projects in states with more swinging seats.
“I think we have the right to expect that these decisions are made in the best interests of the community at large,” said Terrill, who is the Grattan Institute’s Transport Program Director.
In the current environment state transport funding decisions are skewed by roads and rail listed on the National Land Transport Network<a href="https://investment.infrastructure.gov.au/whatis/network/">.</a>
“It’s very advantageous for the states to put forward proposals for Commonwealth funding that that are on the National Land Transport Network because 50% of the value of any funding they get for such projects from the Commonwealth is quarantined from affecting their GST share,” Terrill said.
For example, she said, the Melbourne Metro is not on that network, meaning if the Commonwealth provides funding for the project, Victoria would lose a commensurate amount of GST over the next three years. This contrasts with the East-West Link project which was on the network. This means 50% of the funding would have been quarantined and only 50% would have affected the GST the state received.
Terrill said that in the current environment there was little to stop politicians committing to projects before they were properly evaluated, particularly during election campaigns. More scrutiny, including through the public release of cost-benefit analyses undertaken by independent bodies, would help ensure funds were spent more wisely.
“Publishing business cases would be a very helpful step, so interested parties, including the general public, have the opportunity to scrutinise these projects before they’re agreed.”
With more scrutiny, the report suggests less money would be spent on highways that are not especially important to the economy, and the focus could shift back to cities, the engines of economic growth.
“When a city doubles in size it more than doubles in productivity and GDP per capita, and in innovation per capita.”
So there’s nothing bad about people increasingly choosing to live in cities, provided we don’t let congestion and overcrowding swamp the benefits."
 
Charis Palmer is deputy business editor, The Conversation sand can be contacted <a href="https://theconversation.com/au/team#charis-palmer" target="_blank">here</a>.
Marion Terrill is Transport Program Director, Grattan Institute and can be contacted <a href="https://theconversation.com/profiles/marion-terrill-169480" target="_blank">here</a>.
Both are authors for The Conversation.
<img src="https://counter.theconversation.edu.au/content/57114/count.gif" alt="The Conversation" width="1" height="1">
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Governments still choosing the wrong transport projects

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OpenAgent, which markets itself as helping vendors find the most qualified real estate agent to sell their property, sees readily expanded horizons.
The real estate agent comparison site <a href="https://www.openagent.com.au/" target="_blank">OpenAgent.com.au</a> has raised $6 million in funding from Hollard Investments with its founder, Richard Enthoven, to join the OpenAgent board. 
OpenAgent bills itself as the fastest growing player in the sector, having trebled in size year on year.
They now seek to attract more of the 500,000 people selling properties around Australia each year.
The site uses data from more than two million sales and has some 15,000 customer reviews of varying worth with OpenAgent taking 20% of an agent’s commission on the sale of properties that OpenAgent refers. 
After OpenAgent launched in 2013 it was referring 50 customers a month to real estate agents. It now sits at around 1000 a month.
It has assisted in the sale of $2.6 billion of Australian property. 
Co-founder and co-CEO of OpenAgent, Zoe Pointon, said the investment from Hollard gives OpenAgent the opportunity to drive greater awareness of the service and improve the user experience for Australians looking to sell their homes.    
“Having the people behind companies like Hollard Insurance and Greenstone Ltd. invest in us is incredibly humbling."
Richard has been a mentor to both me and my co-founder Marta Higuera for the past year and a half. 
Pointon concluded; “Australian home owners continue to lack information and guidance when making one of life’s most important financial transactions: selling your home. We believe failure to compare agents is a significant contributor to poor outcomes for both sellers and buyers in real estate. There are still too many Australians who don’t get the right agent to sell their property, and we want to fix that.”
The funding round from Hollard Investment takes OpenAgent’s total funding to $8 million.
It follows $2 million investment in 2013 and 2014 by a group of investors, including Pete Flint, the founder of US real estate giant Trulia.
Ms Pointon said she and Ms Higuera met Mr Enthoven four years ago at a start-up accelerator group event called Heads Over Heels.
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