The case of Victorsen v Easy living Holdings Pty Ltd considered whether purchases of a property ‘Off the Plan’ were entitled to rescind a contract on the basis of a material and substantial discrepancy between the subject matter of the sale compared to what the vendor conveyed. The plaintiff’s claimed that, firstly, the outdoor area was meant to be covered by lawn but was affected by an OSD tank, secondly, the main bathroom was not constructed in accordance with the contract as the bath was in the wrong place, and thirdly, the kitchen was not constructed in accordance with the contract because it did not have a pantry. The court held that it may be reasonably supposed that the purchasers would not have entered the contract had they been aware of the OSD tank instead of the grassed area, and they were thereby entitled to rescind the contract. The court did not need to consider the bathroom or the kitchen discrepancies.
The defendant was ordered to return the deposit to the plaintiffs because of the substantial nature of the deficiency between the promise and performance of the contract.