Developer installs stormwater tank and timber deck instead of grass lawn. Could the purchasers rescind the contract? Which case won?
Purchasers enter into off-the-plan contract to buy townhouse with grass lawn
In June 2017, the purchasers entered into an off-the-plan contract to buy a townhouse from the developer.
At the time of signing the contract, the townhouse’s outside area was bare dirt.
However, the purchasers’ understanding was that this area would be covered with grass.
A grass area was important to them as they had an 18-month-old son.
The grass area was shown in the floor plan and the landscape plans.
These were approved for the purposes of the development consent and the construction certificate that had been issued to the developer before construction of the townhouse began.
Grass lawn replaced by stormwater detention tank and timber deck
In November 2017, the purchasers discovered that instead of installing grass, the developer had built a stormwater detention tank on the townhouse’s outside area and covered it with a raised timber deck.
After a final occupation certificate was issued in December 2017, the developer pressed for completion of the contract.
Purchasers initiate proceedings in Supreme Court to rescind contract
In January 2018, the developer served a notice to complete, calling for completion by 20 January 2018.
The purchasers declined to proceed to completion.
Instead they sought a declaration from the NSW Supreme Court that they were entitled to rescind the contract and had elected to do so.
The developer disagreed and sought an order requiring the buyers to complete the purchase.