Harvey Fields Private Estates Pty Ltd v 33 Malcolm Street Pty Ltd

The dispute in Harvey Fields Private Estates Pty Ltd v 33 Malcolm Street Pty Ltd arose between the vendor, Harvey Fields Private Estates, and the purchaser, 33 Malcolm Street, concerning the sale of a strata lot under the Strata Titles Act. The purchaser, 33 Malcolm Street, sought to avoid the sale due to the vendor's failure to notify them of a variation that reduced the purchaser's unit entitlement and increased the floor area. The variation involved the installation of a structural wall by the vendor's architect, which obscured the purchaser's panoramic view of the Swan River. The purchaser issued a notice of avoidance, and the vendor counterclaimed for specific performance of the sale.

The primary legal issue before the court was whether the variation constituted a notifiable change under the Strata Titles Act and whether the purchaser's avoidance notice was valid. The court needed to determine whether the variation was substantial enough to require notification and whether the purchaser's avoidance was justified. Additionally, the court considered the implications of the vendor's failure to notify the purchaser of the variation and whether this constituted a breach of the statutory obligations.

The court held that the variation was indeed a notifiable change, as it materially affected the purchaser's unit entitlement and obstructed the view from the unit. The court found that the structural wall, which was a significant change from the original plans, required notification under the Strata Titles Act. Furthermore, the court ruled that the purchaser's notice of avoidance was valid, as the purchaser had grounds to avoid the sale due to the undisclosed variation. Consequently, the court dismissed the vendor's counterclaim for specific performance.

The court ordered that the sale of the strata lot be avoided, and the contract for sale and purchase be terminated. The purchaser was entitled to a refund of the deposit, and the vendor was required to rectify the structural wall to restore the original panoramic view. This decision underscores the importance of strict compliance with notification requirements under the Strata Titles Act in off-the-plan sales.