Queensland’s Property Law Act 2023 names four reasons a settlement may not happen as set: a settlement day that is not a business day, a land registry computer failure, a failure of the systems an electronic settlement runs on, and a disaster or other serious disruption. The Northern Territory’s Law of Property Act 2000 deals with one, a failure of the Land Titles Office computer system. For a settlement that is simply late, the official pages read for this guide leave the answer to the contract of sale.
General informationGeneral information about what these laws say, not legal advice about any contract, delay or notice. The Acts themselves are on the Queensland legislation site and the Northern Territory legislation site; the lawyer or conveyancer acting on a sale reads them with its contract.
Queensland’s four named causes
Three of the four, like the Territory’s rule, apply only where the contract makes time of the essence, and they work on that term: one keeps it and moves the day, the others suspend it until a notice to complete is received.
| The cause | When it applies | What happens to time | The new settlement day |
|---|---|---|---|
| Settlement day is not a business day (s 78) | The settlement day in the contract is not a business day in the place of settlement (or, for an electronic settlement with no place named, where the land lies), and the contract does not itself name that day as a Saturday, Sunday or public holiday. | Not dealt with. | Whatever the contract says: a day the parties agree on, failing which the next business day in that place. |
| Land registry computers down (s 79) | Time is of the essence, and the buyer, not in default, cannot verify the seller’s title on the day because the land registry computers used for it are inoperative. | It stops being of the essence. The seller is taken not to have proved title, and not to be in breach only for that. | Set by a notice to complete from either party, stating the computers are fully operational again and naming a day 3 to 7 business days later. It cannot be given before the day after the computers’ first continuous day of operation. |
| Electronic settlement systems down (s 80) | An electronic conveyance with time of the essence cannot settle because computers used by the land registry, Queensland’s Commissioner of State Revenue, the Reserve Bank of Australia, a financial institution or the network are inoperative, including because one is closed for business. | It stays of the essence. Neither party is in breach only because settlement did not happen on the day. | The next business day, when both parties must do everything the network requires to settle; and the next again if the same cause recurs. |
| An adverse event (s 81) | Time is of the essence, and one party cannot complete on the day and at the time because of an adverse event. | It stops being of the essence. | Subject to any right in the contract to nominate a new day and time: the day and time agreed, or otherwise a day 5 to 10 business days after a notice to complete. |
Under sections 79 and 81, time is of the essence again from the moment a party receives the notice to complete. Sections 80 and 81 each define a business day as any day that is not a Saturday or Sunday, not a public holiday where the contract is to be settled (or, for an electronic settlement with no place named, where the land is), and not a day from 27 to 31 December.
An adverse event, in order
Section 81 asks the most of the party who cannot settle. The notice to complete in step 4 sets the new day only where the parties have not agreed one and the contract gives no right to nominate one.
What counts
An event causing serious disruption to a community. The Act’s examples include a cyclone, fire, flood, landslide, storm or tsunami; a public health emergency; a lawful direction or order from a government entity; terrorism, war-related activity or riot; and an explosion.
Limit the effect
The party who cannot settle must take reasonable steps to limit the event’s effect. If it does, it is not in breach only because settlement did not happen.
Tell the other side
As soon as practicable, it tells the other party of the event and how it stopped settlement.
Give a notice to complete
As soon as practicable once the event stops preventing settlement, it gives a notice to complete, naming a time and a day at least 5 and not more than 10 business days later.
Time runs again
On receipt of the notice, time is of the essence again. If buyer and seller each give one for the same event and settlement day, the seller’s prevails.
The locked workspace
Some Acts give a right to terminate a sale that is expressed to end on settlement. Where the sale is completed by e-conveyancing, section 86 of Queensland’s Act says that right ends on settlement and may not be exercised while the electronic workspace is locked for settlement. “Locked” means the network does not allow a participating subscriber to change a document or instruction in the workspace.
The Northern Territory: a computer failure
Section 72A of the Law of Property Act 2000 applies to a contract entered on or after the section commenced, where time is of the essence and the buyer cannot verify the seller’s title on the completion date only because the Land Titles Office computer system has failed, so the contract is not completed that day.
Unless the contract says otherwise, time stops being of the essence and the contract is not breached. After the system’s first day of continuous operation following the failure, either party may give a notice to complete allowing no more than 7 business days. On its receipt, time is of the essence again, and the section can apply more than once.
Other causes the official pages name
- In Queensland the buyer inspects the home no more than a few days before settlement, and if it is not in good condition can ask their lawyer to delay settlement until the seller fixes the problem.
- In Victoria, a lost paper certificate of title can cause owners significant difficulty and delay settlement. Since 3 August 2024, the replacement is an electronic certificate of title.
- In Victoria, if settlement has been delayed, the State Revenue Office says a property clearance certificate can be updated on request; a free update is available only within 90 days of the original certificate and with no change in the parties, and after 90 days a new certificate is needed.
- Nationally, the ATO’s processing guidance is to lodge a clearance certificate application at least 28 days ahead of settlement, so that it arrives in time.
What is left to the contract
For a settlement that is simply late, none of the sections above applies, and no official page read for this guide, in any state, explains the notice to complete a contract uses then, or what a late party must pay. The day itself belongs to the contract. South Australia’s Act defines the date of settlement as the date the contract fixes, or a date the parties agree in its place, and in Victoria the seller sets it in the contract of sale.
The lawyer or conveyancer acting on the sale works within those terms. In NSW, conveyancers and solicitors are equally qualified to do conveyancing.