Land­mark Port Dou­glas case over ’get out of jail free’ clause

Port Douglas & Mossman Gazette - - FRONT PAGE -

A PORT Dou­glas unit has been at the cen­tre of an in­trigu­ing le­gal case re­lat­ing to po­ten­tial buy­ers us­ing the ‘‘sub­ject to fi­nance’’ clause in a sale con­tract as a ‘‘get out of jail free card’’. Anne Marie Miller agreed to buy a Port Dou­glas unit for $575,000 in Sep- tem­ber 2010 on the con­di­tion she se­cured a loan for $400,000 from ING Bank within seven days. Un­der stan­dard sale con­tracts buy­ers must take ‘‘all rea­son­able steps to ob­tain fi­nance’’. How­ever, the woman’s mort­gage bro­ker never sub­mit­ted a for­mal ap­pli­ca­tion to ING Bank. In­stead, the bro­ker made an ap­pli­ca­tion to The Rock Build­ing So­ci­ety. The build­ing so­ci­ety could not ap­prove the loan ap­pli­ca­tion by the nom­i­nated date and Ms Miller ter­mi­nated the con­tract. Not sat­is­fied, unit own­ers Trevor and Irene Hauff de­manded to see ev­i­dence that Ms Miller made a suf­fi­cient ef­fort to ob­tain a loan from ING Bank, as stip­u­lated in the con­tract. The Hauffs took their case to the Supreme Court, which ruled in their favour.

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