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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
The grass area was shown in the floor plan and the landscape
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
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
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
The developer disagreed and sought an order requiring the buyers
to complete the purchase.
case a - The case for the purchasers
case b - The case for the developer
The developer promised us a grassed outdoor area as set out in
the approved plans for the construction of the townhouse.
Instead, the developer built a stormwater detention tank on the
property and put a raised timber deck over the top of it.
Prior to signing the contract, we explicitly told the developer
that a yard was essential for our 18-month-old son to play in. The
developer assured us that we would have grass for our son to run
around on and plenty of room for a cubbyhouse.
Had we been made aware prior to signing the contract that,
instead of grass, the outdoor area would contain a stormwater tank
covered by a timber deck, we would not have entered into the
If we were to proceed with this purchase now, we would be
buying something entirely different to what we contracted to
In these circumstances, the law allows us to rescind the
contract. The court should affirm our decision to do so and order
the developer to repay our deposit, plus interest and costs.
After we signed the contract with the purchasers, we were
advised by our plumbing contractor that it was no longer possible
to place the stormwater detention tank in its originally planned
location. This meant that we were required to relocate the tank to
its present position.
The buyers' main concern was not that the outdoor area must
be grassy, but that it had to be of a sufficient size for their
child to play in. The outdoor area has never changed in size, and
we gave the buyers the option, if they preferred, to install
artificial grass over the stormwater detention tank instead of a
Contrary to what the buyers say, the property as currently
built is not entirely different from what they contracted to
acquire. The discrepancy between a grassed area and a timber deck
is merely nominal and there is still ample space for their son to
Accordingly, the purchasers are not entitled to rescind the
contract and the court should order that they complete the