The short answer
A property being passed in does not automatically mean that every later private deal has Queensland’s five-business-day cooling-off period.
Under section 160 of the Property Occupations Act 2014 (Qld), a contract may still be excluded from the statutory cooling-off regime where:
- the property was offered at auction but not sold;
- the ultimate buyer was a registered bidder at that auction; and
- the contract was entered into before 5 pm on the second clear business day after the auction.
All parts of the test matter. It is not enough to say “within two business days”. The buyer’s registration, the identity named in the contract and the time the contract was actually formed must be checked.
An auction sale and a post-auction negotiation are different
When the auctioneer accepts the highest bid and the property is sold under the hammer, the sale is excluded from the statutory cooling-off provisions.
When the property is passed in, later negotiation is not itself a sale by auction. However, section 160 contains a separate exclusion for certain contracts formed after an unsuccessful auction. This is why both of the following statements can be true:
- the post-auction deal is negotiated privately; and
- the buyer may still have no statutory cooling-off period.
The registered-bidder requirement
The legislation refers to a registered bidder. It does not say only the highest bidder is affected.
The relevant evidence may include:
- the bidder registration form;
- identification supplied at registration;
- the bidder paddle or unique identifier;
- the name of any person for whom the bidder was acting;
- the name of the buyer in the final contract; and
- whether a company, trustee, spouse or nominee replaced the registered person.
If the registration name and contract buyer are different, the result should not be assumed. The agency arrangements, contract wording and surrounding evidence need to be reviewed.
The second clear business day and 5 pm deadline
The statutory deadline is not simply 48 hours after the auction.
The Act refers to the period ending at 5 pm on the second clear business day after the auction. Weekends and relevant public, special or bank holidays can affect the calculation.
For example, if a property is passed in on Saturday and the following Monday and Tuesday are both business days, the deadline will generally be 5 pm on Tuesday. A relevant holiday may move the result.
The exact auction date, place and holiday calendar should be recorded before relying on a deadline.
The offer time is not necessarily the contract time
Section 160 focuses on when the contract is entered into. Delivering an offer before the deadline does not necessarily mean the contract was formed before the deadline.
The timeline may include:
- the buyer sending an offer;
- the seller rejecting it or making a counteroffer;
- one or both parties signing electronically;
- the final acceptance being communicated; and
- the buyer receiving the completed contract.
If the seller accepts after 5 pm, or the acceptance is not communicated until after the statutory deadline, the outcome may differ from an offer accepted earlier. Save the electronic-signing audit trail and all emails and messages.
Four common post-auction scenarios
Registered bidder and contract within the deadline
The statutory cooling-off period is generally excluded if all section 160 requirements are satisfied.
Registered bidder but contract after the deadline
The special unsuccessful-auction exclusion may no longer apply. The buyer must still check whether the contract is a relevant residential contract and whether another exclusion or written waiver applies.
Buyer was not a registered bidder
The post-auction deal is not a sale by auction. The registered-bidder exclusion may not apply, but the contract and all other statutory exclusions must still be checked.
Registered person and final buyer are different
Do not assume either result. A spouse, company, trustee or nominee may create an identity issue requiring examination of authority, agency and the contract formation evidence.
Cooling-off is not the same as an unconditional contract
Statutory cooling-off and contractual conditions are separate.
A contract with no cooling-off period can still contain finance, building and pest or other special conditions. Conversely, an unconditional private contract may still have a statutory cooling-off period unless an exclusion or valid waiver applies.
The contract must be read for:
- finance and inspection conditions;
- deposit and settlement dates;
- due diligence or approval conditions;
- seller disclosure rights;
- default remedies; and
- special conditions that change standard terms.
The 0.25% amount is not a universal exit fee
Where a statutory cooling-off period exists and the buyer validly terminates within it, the seller may deduct a termination penalty of up to 0.25% of the purchase price from the deposit.
That rule does not allow a buyer to pay 0.25% and cancel any contract. If cooling-off is excluded, expired or waived, another termination right must be found in the contract or law.
What to preserve before signing
Keep the following documents and timestamps:
- auction date, location and result;
- bidder registration and paddle details;
- the registered person’s identity and authority;
- every draft, offer and counteroffer;
- electronic-signature audit records;
- acceptance communications;
- the fully signed contract and delivery time;
- Form 2 and prescribed certificates; and
- any cooling-off waiver or shortening notice.
Urgent post-auction checklist
Before signing after a passed-in auction:
- Confirm whether the proposed buyer was registered.
- Check whether the buyer name matches the registration.
- Calculate the second clear business day and 5 pm deadline.
- Identify when acceptance will be communicated.
- Review cooling-off exclusions and any written waiver.
- Review finance, inspection, deposit and settlement conditions separately.
- Check the Form 2 and other termination rights.
- Obtain legal advice before the offer is accepted.
Frequently asked questions
I was the highest bidder and bought immediately after the auction. Is there cooling-off?
Generally not if you were a registered bidder and the contract was entered into within the section 160 timeframe. The documents and timing should still be checked.
I registered but never made a bid. Am I affected?
The statutory wording is based on registration rather than a requirement to make an actual bid. The precise facts and buyer identity should be reviewed before a conclusion is reached.
I attended but did not register. What happens?
The later negotiation is not itself a sale by auction. If the buyer was not registered, the special post-auction exclusion may not apply, but other exclusions or a written waiver may still affect the result.
A Saturday auction was passed in. Is Tuesday always the deadline?
Not always. It may be Tuesday at 5 pm if Monday and Tuesday are both business days, but relevant holidays can change the calculation.
I sent the offer before the deadline but the seller accepted later. Which time matters?
The legislation asks when the contract was entered into. Offer, signature and communication of acceptance times may all be relevant.
Can I pay 0.25% and cancel?
Only if a statutory cooling-off period exists and the buyer validly terminates within it. The 0.25% penalty is not a general cancellation option.
How Ensure Legal can assist
Ensure Legal can review a post-auction contract, bidder registration, Form 2, electronic-signing timeline and contractual conditions before you sign or before an urgent deadline expires.
If an agent is pressing for an immediate decision after a property is passed in, send the complete document set for review before acceptance is communicated.
Important information
This article is general information only and is not legal advice. Cooling-off and contract-formation outcomes depend on the facts, documents, buyer identity, timing, holidays and contract terms.
