Beware the material effect of amending a plan of subdivision

Introduction

The decision in the Supreme Court of Victoria, Besser v Alma Homes Pty Ltd¹, provides some guidance as to the basis on which a purchaser may rescind an 'off-the-plan' contract where the vendor amends the plan of subdivision in a way which will "materially affect the lot to which the contract relates".

Facts

The case concerned a contract of sale for a lot on an unregistered plan of subdivision (defined as a "prescribed contract of sale" in the Sale of Land Act 1962 (Vic), but commonly referred to as an 'off-the-plan' contract).

The purchaser (Ms Besser) entered into an 'off-the-plan' contract to acquire the property from the vendor, one of four lots on an unregistered plan of subdivision, and paid a 10% deposit of $125,000 in doing so.