Sunday, October 25, 2009

Tennyson Reach Lawsuit Judgment

As previously noted, Mirvac is suing a number of its off-the-plan customers for failure to settle at the over-priced Tennyson Reach development. Mirvac was recently successful in court on one issue. A purchaser claimed that the lot size of the apartment was 1sqm less than shown on the plan. This is what the court said on this issue:

"The contract provided that the seller could make changes to the size of a lot of up to five per cent (more or less) than that shown in the Disclosure Statement. Accordingly, the description of the floor area on the plan insofar as it operated to clearly identify the lot should be taken to be up to five per cent different (more or less) from 177 m2, namely that it would have an area of between 168.15 m2 and 185.85 m2. On this basis the reduction in the size of the balcony by 1 m2 as depicted on later plans including plans that became part of the second further statement did not mean that the Disclosure Statement contained information concerning the floor area of the proposed lot that became inaccurate.

In short, insofar as the description of the floor area served to clearly identify the lot, the floor area was to be between 168.15 m2 and 185.85 m2 and this information did not become inaccurate after the Disclosure Statement was given. On this basis, the reduction in the size of the balcony by 1 m2 did not give rise to an inaccuracy that the plaintiff was required to address in a rectification statement under s 22."

The leason to learn here is that most off-the-plan contracts have a clause that says that apartment sizes can vary. In this case, the purchaser could have ended up with 10sqm less than what they believed they were getting, and would still be required to settle.


1 comment:

martintanz said...

Maybe another lesson is not to pay $1,458,400 for an apartment in the boondocks. Ouch. I don't blame them for trying to pull the pin but now they have legals on top of that. What a nightmare this development is turning out to be.