The recent case of Jin Yi Construction Pty Ltd v Romeciti Eastwood Pty Ltd [2022] NSWSC 56 involved a contract of sale of a Lot in a Strata plan. The Plaintiff had purchased a commercial strata title unit ‘off the plan’. 

The contract for the sale comprised 61 consecutively numbered clauses, 1-31 of which were the standard form ‘contract for sale and purchase of land’ published by the Law Society of New South Wales. Clauses 32-61 comprised ‘special conditions.’ The first question for the court was whether under one of these special conditions, the Purchaser was entitled to rescind the contract. The court found that the right of rescission accrued to the plaintiff following registration a ‘the new storage space’ on the Lot, which deprived the purchaser of an unobstructed, open area of commercial space and reduced the amount of commercial space from the promised 110 square metres to the available 102.8 square metres.  This 6.5% reduction of area was sufficient to satisfy the 5% special condition allowing for a right to rescind in the contract. This special condition also carried with it the right to retain the deposit.

The Purchaser was entitled to rescind the contract and recover the deposit paid because it was materially different from the strata plan attached to the contract. 

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