Victorsen v Easy Living Holdings Pty Ltd [2019] NSWSC 1721

Victorsen v Easy Living Holdings Pty Ltd [2019] NSWSC 1721

The off-the-plan contract required the first defendant to construct and convey Unit 9 in accordance with the approved plans, which included an outdoor area turfed or covered by lawn and an OSD tank and access grates located as shown on those plans. After the contract was made, the OSD tank was constructed almost entirely beneath the Unit 9 outdoor area, above the adjacent tiled level, with four access grates incorporated into its concrete roof and a timber deck built over it, so the defendant could not provide the promised lawn outdoor area. The discrepancy was substantial and material, particularly for purchasers of a townhouse with limited outdoor space who wanted a suitable grassed...

Jurisdiction
Australia
Judgment Date
05 December 2019
Procedural Posture
Equity Proceedings Concerning an Off the Plan Contract for Sale of Land, With Plaintiffs Seeking Rescission and Declaratory Relief and the First Defendant Seeking Specific Performance by Cross Claim / Principal Judgment After Hearing
Outcome
Plaintiffs held entitled to rescind the contract; first defendant's cross-claim for specific performance and damages dismissed.
Legal Topics
['contract for Sale of Land' 'off the Plan Sale' 'rescission' 'rule in Flight V Booth' 'material and Substantial Discrepancy' 'specific Performance' 'misleading or Deceptive Conduct' 'on Site Stormwater Detention Tank' 'strata Development']
['land Law' 'contract Law' 'equity' 'australian Consumer Law'] ['contract for Sale of Land' 'off the Plan Sale' 'rescission' 'rule in Flight V Booth' 'material and Substantial Discrepancy' 'specific Performance' 'misleading or Deceptive Conduct' 'on Site Stormwater Detention Tank' 'strata Development']

Case Brief

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Procedural Posture

Equity Proceedings Concerning an Off the Plan Contract for Sale of Land, With Plaintiffs Seeking Rescission and Declaratory Relief and the First Defendant Seeking Specific Performance by Cross Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether there was a material and substantial discrepancy between the subject matter of the contract for sale and the property available to be conveyed by reason of the changed location and construction of the OSD tank and loss of a lawn outdoor area.' 'Whether the plaintiffs were entitled to rescind the contract under the principles derived from Flight v Booth.' 'Whether any right to rescind was lost by election or affirmation after the plaintiffs became aware of the OSD tank issue.' 'Whether the first defendant was entitled to specific performance of the contract.' "Whether it was necessary to determine the plaintiffs' alternative Australian Consumer Law claim or complaints concerning the bathroom and pantry."]

Ratio Decidendi

The off-the-plan contract required the first defendant to construct and convey Unit 9 in accordance with the approved plans, which included an outdoor area turfed or covered by lawn and an OSD tank and access grates located as shown on those plans. After the contract was made, the OSD tank was constructed almost entirely beneath the Unit 9 outdoor area, above the adjacent tiled level, with four access grates incorporated into its concrete roof and a timber deck built over it, so the defendant could not provide the promised lawn outdoor area. The discrepancy was substantial and material, particularly for purchasers of a townhouse with limited outdoor space who wanted a suitable grassed...

Court Disposition

Plaintiffs held entitled to rescind the contract; first defendant's cross-claim for specific performance and damages dismissed.

Orders

  • ['Declaration that the plaintiffs are entitled to rescind the contract for sale.' 'Declaration that the plaintiffs, by these proceedings, have elected to rescind the contract.' 'First defendant to return the deposit paid by the plaintiffs, together with any interest earned thereon.' "First defendant's claim for...