Off-the-Plan Apartment Styling Dispute: When a developer installs the “wrong” finishes, does the purchaser have a right to terminate and recover the deposit, or must they still complete and accept compensation?

Introduction (Mandatory Fixed Text) Based on the authentic Australian judicial case Plaintiff v First and Second Defendants [2025] NSWSC 1295, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales

Presiding Judge: Pike J

Cause of Action: Equity proceeding concerning an off-the-plan contract for sale of land, alleged repudiation by renunciation, claim for return of deposit under Conveyancing Act 1919 (NSW) s 55(2A), and cross-claim for specific performance

Judgment Date: 5 November 2025

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Off-the-plan contract

Keyword 3: Repudiation by renunciation

Keyword 4: Contract construction and permitted variations

Keyword 5: Specific performance of land sale

Keyword 6: Deposit and Conveyancing Act 1919 (NSW) s 55(2A)

Background

The Plaintiff agreed to buy a one-bedroom apartment off the plan in a large redevelopment. The contract gave the purchaser a choice between two interior style schemes. The practical difference was visual rather than structural: a colour difference in stone finishes, including the kitchen benchtop and a bathroom wall. The Plaintiff selected one scheme. When the apartment was completed, the other scheme was installed. The Plaintiff raised the discrepancy and sought rectification. The vendors did not agree to rectify at that time and insisted the purchaser still complete. The dispute escalated into court proceedings about whether the purchaser could treat the contract as ended, recover the deposit, and walk away, or whether the vendors could compel completion.

Core Disputes and Claims

The Court was required to determine, in substance, four connected questions:

1. Contract meaning and risk allocation: On the proper construction of the off-the-plan contract, were the vendors permitted to alter the style scheme finishes provided they remained of similar finish and at least equivalent quality, subject to the contract’s regime for “material particular change”?

2. Repudiation by renunciation: Did the vendors’ conduct in refusing to change the finishes amount to repudiation in the sense of renunciation, meaning a clear indication they would perform only in a manner substantially inconsistent with a fundamental obligation?

3. Remedy selection: If the contract remained on foot, should the Court order specific performance compelling the purchaser to complete, rather than leaving the vendors to damages?

4. Deposit: If the purchaser did not complete, should the deposit be returned pursuant to Conveyancing Act 1919 (NSW) s 55(2A), having regard to equity and the justice of the case?

Relief sought:

Plaintiff: Declarations that the contract was at an end by acceptance of repudiation, and an order for the return of the AUD $120,000 deposit pursuant to Conveyancing Act 1919 (NSW) s 55(2A), together with associated relief.

First and Second Defendants: Dismissal of the Plaintiff’s summons, and orders for specific performance of the contract (or equitable damages in the alternative), plus costs.

Third Defendant: Joined party (the judgment records representation and party status), but the operative dispute centred on the Plaintiff and the vendors.

Chapter 2: Origin of the Case

An off-the-plan purchase is, in everyday terms, a promise about a future thing. You sign up for a finished apartment that does not yet exist in its final form. Because that future can shift—supply delays, approvals, design adjustments—off-the-plan contracts often contain detailed risk allocation provisions. Those clauses are the deal: they determine what changes can be made without compensation, what changes trigger notice, what changes permit rescission, and what changes merely give rise to a claim for compensation.

Here, the relationship between the parties began in a familiar way.

1. The commercial setting and promise

The First and Second Defendants controlled a redevelopment of a former hotel site into a multi-storey mixed-use building with 117 residential apartments and a retail unit. The development was marketed to purchasers during a pre-sales campaign. The Plaintiff agreed to purchase a one-bedroom lot, described as a proposed lot in a future strata plan, at a price of AUD $1.2 million, paying a 10% deposit of AUD $120,000.

In off-the-plan buying, deposit money is often the purchaser’s first major commitment, while completion may be years away. The purchaser expects the unit will match the contractual description, but the contract typically anticipates that some details may change as construction proceeds.

1. The financial interweaving in daily life

Even where the purchaser’s daily life is not intertwined with the vendor’s business, money is. The purchaser’s deposit is locked up. The vendor’s project finance and cashflow rely on pre-sales and contractual enforceability. The longer the project runs, the more both sides become invested in the outcome: purchasers plan life decisions around settlement timing, while vendors plan funding and sales strategy around pre-sales completing.

1. The conflict emerges: a small feature becomes a big legal issue

The conflict did not centre on layout, size, defects, or habitability. It centred on a style choice. The Plaintiff had selected a particular interior scheme, principally identified by stone colour for the kitchen and part of the bathroom. At a pre-settlement inspection, the Plaintiff observed the apartment had the opposite colour scheme to what was selected.

This is a classic off-the-plan flashpoint: the purchaser says, “This is not what I agreed to buy.” The vendor says, “It is substantially the same apartment, and the contract allows reasonable changes.” The legal question becomes: did the contract treat this detail as fixed, or as subject to permitted variation?

1. Decisive moments that triggered litigation

Several decisive moments drove the matter to court:

• The Plaintiff’s solicitors repeatedly notified the vendors’ solicitors that the wrong scheme had been installed and requested urgent rectification before settlement.

• The vendors’ side delayed providing a clear position. Eventually, after settlement became imminent, the vendors stated they accepted the colour did not match the Plaintiff’s selection, but regarded the difference as inconsequential and would not rectify, while still requiring completion.

• The Plaintiff’s side treated that refusal as repudiation and later purported to terminate and demanded return of the deposit.

• The vendors responded with a notice to complete and, when completion did not occur, sought specific performance.

The litigation was, therefore, not only about the colour of stone. It was about whether the contract’s allocation of risk and permitted variations meant that a purchaser could not end the contract for that kind of change, and what equity would do when land is involved.

Chapter 3: Key Evidence and Core Disputes

Plaintiff’s Main Evidence and Arguments

1. Contract selection record

The Plaintiff relied on the contract particulars showing a marked style choice for the apartment, selecting the “Harbour Scheme” rather than the “Park Scheme”. The significance was that the contract also contained a special condition stating that if a style is marked, the style scheme of the apartment forming part of the property will be as indicated.

1. Pre-settlement inspection and identification of the discrepancy

The Plaintiff’s evidence included correspondence following a pre-settlement inspection, stating that the stone finishes were “green marble” where “white marble” had been selected. The letters framed this as a material change to what was contracted for.

1. Solicitor correspondence establishing the alleged refusal and its duration

The Plaintiff relied on a sequence of emails and letters over months showing repeated requests for rectification and, ultimately, the vendors’ written position that they would not rectify because the difference was “inconsequential”, while demanding completion.

1. Termination notice and deposit demand

The Plaintiff’s termination stance was based on the vendors’ refusal to provide the selected style scheme, characterised as renunciation of a fundamental contractual obligation, justifying termination and repayment of the deposit.

1. Statutory deposit return claim

The Plaintiff sought the return of the deposit pursuant to Conveyancing Act 1919 (NSW) s 55(2A), arguing it would be unjust or inequitable for the vendors to retain it in the circumstances.

Respondent’s Main Evidence and Arguments

1. Construction of the contract as permitting changes to finishes

The First and Second Defendants relied on multiple contract provisions that permitted alterations to finishes to a similar manner of finish of at least equivalent quality, and a regime dealing with changes to material particulars. Their position was that the colour change fell within permitted alterations and did not justify termination.

1. Equivalent quality and limited significance

The vendors accepted the colour did not match the Plaintiff’s selection, but maintained the finish was of equivalent quality and the difference was not substantial in the relevant contractual or equitable sense.

1. Remedy framework: specific performance appropriate for land

The vendors argued the contract remained on foot and specific performance should be ordered, reflecting the usual approach to contracts for sale of land where damages are not an adequate substitute.

1. Alternative claim: equitable damages if specific performance refused

In the alternative, the vendors foreshadowed equitable damages representing holding costs, selling costs, and default interest.

1. Settlement readiness and later offer

On the hearing day, the vendors made an open offer to replace the stone to the selected colour at their expense, conditional on completion and a deed of release including costs arrangements. This was not accepted.

Core Dispute Points

1. What did the contract really promise about the “style scheme” if one was marked?

2. Did the permitted alterations clause allow changing stone colour as a finish, and if so, did it override the style selection clause?

3. Did refusal to rectify amount to repudiation by renunciation, judged objectively from the standpoint of a reasonable purchaser?

4. If the purchaser was wrong to terminate, what remedy should equity grant: completion, damages, or deposit return?

5. How does the deposit discretion under Conveyancing Act 1919 (NSW) s 55(2A) operate when specific performance is ordered?

Chapter 4: Statements in Affidavits

Affidavits in civil proceedings are not merely narratives. They are designed to lock parties into versions of events, link those events to documents, and position the dispute for legal characterisation.

In this case, the evidentiary posture was unusual in one respect: the hearing proceeded without witnesses required for cross-examination. That meant the contest was largely documentary and legal. When a case turns on contract construction and the legal characterisation of conduct as repudiation, the most persuasive affidavit is often the one that does three things:

1. Anchors each factual assertion to a contemporaneous document.

2. Avoids overstatement and stays close to what can be proved.

3. Frames disputed conduct in terms that match the legal test.

How the Plaintiff’s affidavit case was typically constructed

The Plaintiff’s affidavit strategy, reflected in the correspondence chronology and contractual focus, would aim to establish:

• A clear contractual promise: a marked style selection and a clause stating the apartment’s style scheme will be as indicated.

• A clear departure: inspection reveals the opposite colour scheme.

• A clear request: repeated demands to rectify before settlement.

• A clear refusal: vendor states it will not rectify and still demands completion.

Then comes the crucial bridge: describing that refusal not as a simple breach, but as renunciation of a fundamental obligation.

In plain terms, the Plaintiff’s affidavit posture would say: “I did not get what I chose, they were told, they refused, so the deal is over.”

How the Defendants’ affidavit case was typically constructed

The vendors’ affidavit posture would aim to establish:

• The contract’s broader architecture: permitted alterations to finishes and a regime for material particular changes.

• The quality equivalence: the installed stone finish is of at least equivalent quality; the difference is aesthetic.

• The appropriate remedy pathway: if there is any compensable discrepancy, it is a claim for compensation under contract mechanisms, not a right to terminate or refuse completion.

In plain terms, the vendors’ affidavit posture would say: “The contract allowed this kind of finish adjustment, it is not substantial, and the purchaser must still complete.”

In-depth comparison: the boundary between untruths and facts

The key boundary here is not a contest over whether the colour differed. The vendors accepted the finish colour was not what was selected. The boundary was in legal characterisation:

• The Plaintiff characterised the difference as a material change and a refusal to comply with an essential promise.

• The vendors characterised the difference as a permitted alteration, or at most something to be addressed by compensation mechanisms.

In this kind of dispute, the Court often treats the characterisation as subordinate to construction: first decide what the contract permits; then decide whether conduct is inconsistent with those obligations.

Strategic Intent: procedural directions about affidavits

Where a court expects a dispute to turn on contractual construction and documentary evidence, procedural directions about affidavits tend to concentrate issues and reduce unnecessary factual contest. The practical intent is to:

• Make the documentary chronology clear.

• Identify exactly what contractual clauses are relied upon.

• Avoid sprawling credibility contests that do not advance the real issues.

The result is that the hearing becomes an “evidence and logic” contest about how documents fit into the legal test, rather than a theatre of competing oral accounts.

Chapter 5: Court Orders

Before final hearing, the Court’s procedural management included orders regulating the service of evidence, particularly expert valuation material. The vendors sought to rely on a valuation affidavit and report served late, contrary to earlier orders setting a deadline. The Court refused to admit that late evidence, and also rejected an attempt to tender a single table extracted from the valuation report, because admission would prejudice the Plaintiff and likely require adjournment, and the table alone was unlikely to assist without supporting expert analysis.

This procedural episode illustrates a recurring litigation lesson: evidence is not only about what it says, but when and how it is served. Late evidence can be excluded even if it might be relevant, because procedural fairness is itself a substantive concern.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing unfolded as a focused contest on documents and legal principles rather than witness credibility under cross-examination. That does not make the hearing less rigorous. It shifts the battleground. Instead of “Who is telling the truth?”, the question becomes “What did the parties agree, and what does the law say follows from these documents?”

Process Reconstruction: Live Restoration

1. The Court anchored the dispute in the contract’s structure

The Court first positioned the primary issue as contractual construction: whether the contract permitted the vendors to make the change to the style scheme finishes.

This is a disciplined approach. In repudiation by renunciation cases, the alleged repudiatory conduct must be measured against the promisor’s actual obligations. A party cannot renounce an obligation they do not have.

1. The Court identified the legal test for renunciation

The Court treated repudiation in the relevant sense as renunciation: conduct conveying to a reasonable person that the other party will not perform, or will perform only in a substantially inconsistent manner, especially regarding a fundamental obligation.

1. The Court addressed the Plaintiff’s core allegation

The Plaintiff’s allegation was that repeated refusals to install the chosen scheme over months, culminating in a written refusal to rectify while still insisting on completion, amounted to renunciation.

1. The Court assessed that allegation through the contract clauses

The analysis turned on whether clauses permitting alteration of finishes and installed items, if similar and of equivalent quality, authorised what occurred, and whether the contract preserved other remedies short of termination.

Core Evidence Confrontation

The decisive evidence confrontation was not between witnesses. It was between competing readings of the contract.

• The Plaintiff emphasised the clause stating that if a style is marked, the style scheme of the apartment will be as indicated.

• The vendors emphasised clauses permitting alteration of finishes to a similar manner of finish of at least equivalent quality, and clauses limiting purchaser claims, subject to a material particular change notice regime.

The Court’s evaluation then asked a practical question: is changing the colour of stone finishes a “manner of finish” alteration of equivalent quality? If so, the contract allows it unless the material particular change regime is triggered in a way that gives rescission rights.

Judicial Original Quotation Principle

The Court relied on authoritative High Court guidance on repudiation by renunciation. The following passage was used to frame the legal test:

In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.

This quotation was determinative because it fixed the lens through which the vendors’ refusal had to be assessed. The Court was required to ask: would a reasonable purchaser, in context, understand the vendors’ conduct as refusing substantial performance of a fundamental obligation? The Court determined that, on the proper construction of this contract, the vendors had not renounced an obligation to maintain the exact selected colour scheme where an equivalent finish alteration was permitted.

Judicial Reasoning: how facts drove result

The Court’s reasoning moved in a tight chain:

1. Identify the contract obligations concerning construction and finishes.

2. Determine whether the finishes alteration clause permitted the change.

3. If permitted, there is no breach of that obligation, and therefore refusal to reverse the change cannot amount to renunciation of an obligation that the contract does not impose.

4. Even if the alternative construction were adopted (that the style scheme could not be altered), the difference would still need to be assessed for whether it is substantial in equity when considering specific performance, and the Court indicated it would not be substantial.

5. Once specific performance is ordered, deposit return discretion does not operate to unwind the bargain.

Chapter 7: Final Judgment of the Court

The Court made the following operative orders:

1. The Plaintiff’s summons filed 12 June 2025 was dismissed.

2. The Plaintiff was ordered to specifically perform the off-the-plan contract for sale entered into on 22 April 2022, requiring completion of the purchase of the unit.

3. The Plaintiff was ordered to pay the First and Second Defendants’ costs as agreed or assessed.

4. Liberty to apply on three days’ notice was granted to deal with any consequential issues.

In short: the contract remained on foot, the Plaintiff’s termination was not upheld, the deposit was not ordered to be returned, and equity compelled completion.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This decision is a concentrated example of how off-the-plan contracts are designed to prevent aesthetic disputes from derailing settlement, provided the developer stays within the contract’s permitted alteration framework. It also shows how the law of repudiation, often discussed in dramatic terms, is applied cautiously. A purchaser may feel that refusal to rectify is “walking away from the deal”, but the Court’s task is not to validate feelings. It is to identify the actual contractual obligations and then determine whether the conduct objectively communicates refusal to perform those obligations.

There are three jurisprudential features worth spotlighting:

1. Priority of construction over characterisation

The Court treated repudiation as downstream of construction. That ordering is critical. Without a correct identification of the promisor’s obligations, allegations of renunciation become unmoored.

1. Equivalence clauses as risk allocation devices

Clauses permitting “similar” finishes of “equivalent quality” are not filler. They are central to how a project remains buildable in the real world, especially over multi-year timelines.

1. Equity’s remedial centre of gravity in land sales

Specific performance remains a dominant remedy for contracts for sale of land, unless a substantial defect or other equitable bar is shown. The Court’s approach reflects a view that land contracts are, in a practical sense, uniquely enforceable.

Judgment Points

1. The Court treated repudiation as a serious allegation requiring clear evidence

Repudiation by renunciation is not a casual label. It is a legal conclusion with significant consequences. The Court applied the principle that repudiation is not lightly to be inferred. This is a policy of stability in contracting: termination is an extraordinary step; courts require clarity before releasing a party from performance.

Practical implication: a purchaser who terminates based on “refusal to fix” carries significant risk if the contract’s construction does not support a strict obligation to fix.

1. The Court preferred a reading that harmonised style selection with permitted alterations

The Plaintiff argued that a clause stating the marked scheme “will be as indicated” meant no change could be made. The Court rejected that inference. The Court instead read the contract as a whole, recognising that later clauses created a regime for alterations and changes, including finishes.

This is a classic interpretive move: avoid reading one clause as absolute if the contract elsewhere expressly anticipates change and sets consequences.

1. “Equivalent quality” mattered more than “exact match” in the finishes regime

The Court treated the colour difference as falling within finishes. Where the contract allows alteration to a similar finish of at least equivalent quality, the dispute is not about perfection, but about contractual compliance.

Practical implication: in off-the-plan contracts, purchasers must scrutinise how “equivalence” is defined and whether the change is aesthetic, functional, or both.

1. The Court identified alternative contractual pathways short of termination

The Court indicated that the purchaser might not be without remedy even if unhappy with the finish. The contract contained mechanisms for claims for compensation, including error or misdescription and a claims/arbitration pathway, rather than termination.

This is decisive because repudiation requires something going to the root. If the contract anticipates a compensation pathway for certain discrepancies, termination becomes harder to justify.

1. The Court considered, but did not accept, the notion of “fundamental obligation” tied to colour finishes

The Plaintiff’s repudiation case assumed that the chosen style scheme was a fundamental obligation. The Court’s reasoning implied that, in this contract context, the style selection did not rise to the level of an unalterable fundamental obligation, given the permitted alterations clauses.

This is not a statement that style never matters. It is a statement that what matters is what the contract makes fundamental.

1. The Court’s approach reflects proportionality: a seven-figure land contract should not collapse over a limited aesthetic variation, absent contractual support

The Court treated the apartment as otherwise being delivered as contracted for. This proportionality theme matters in equity: the remedy is not designed to reward tactical termination over modest variations where the contract allows them.

1. Specific performance remained appropriate because the vendors were ready, willing, and able on the preferred construction

Once the Court construed the contract as allowing the change, the vendors’ ability to perform was established. The purchaser’s “ready, willing and able” objection depended on the alternative construction and failed with it.

1. Deposit return discretion under Conveyancing Act 1919 (NSW) s 55(2A) did not operate where specific performance was ordered

The Court held that in circumstances where specific performance was to be ordered, there was no basis to order return of the deposit. The deposit claim was therefore not a backdoor route to undo the contract while the contract remained enforceable.

Legal Basis

The key legal authorities and statutory provisions that structured the Court’s analysis were:

• Conveyancing Act 1919 (NSW) s 55(2A): the statutory basis invoked for discretionary return of the deposit in the justice of the case.

• Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61: the authoritative framework distinguishing repudiation as renunciation and stating the objective “reasonable person” test.

• Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47: caution that repudiation is serious and not lightly found.

• Laurinda Park Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23: formulation of repudiation as intention to fulfil only in a manner substantially inconsistent with obligations.

• Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; [1973] HCA 14: principles about resisting specific performance where a substantial defect exists.

• Higgins v Statewide Developments Pty Ltd (2010) 14 BPR 27,293; [2010] NSWSC 183 and Jin Yi Construction Pty Ltd v Romeciti Eastwood Pty Ltd [2022] NSWSC 56: circumstances where it may be unjust or inequitable for a vendor to retain a deposit, particularly where readiness and ability to complete is in issue.

Evidence Chain

The Court’s reasoning can be represented as a structured chain:

1. Contract Particulars: the Plaintiff marked a specific style choice for the apartment.

2. Finishes Schedule and style impact: the style difference concerned stone finishes colour for kitchen and bathroom elements.

3. Inspection and correspondence: documentary proof that the installed scheme was the opposite colour; repeated requests for rectification.

4. Vendors’ written position: acceptance of mismatch but refusal to rectify, coupled with insistence on completion, on the basis the difference was inconsequential.

5. Contract clauses permitting alterations: provisions allowing alteration of finishes to a similar manner of finish of at least equivalent quality, with limitations on claims and a regime for material particular change notices.

6. Legal characterisation step: once the alteration is within permitted contractual scope, refusal to reverse it is not a renunciation of an obligation.

7. Remedy step: contract remains on foot; specific performance is appropriate; deposit return discretion is not engaged to undo the bargain.

Judicial Original Quotation

The Court’s conclusion on repudiation rested on a disciplined application of the renunciation test. The following statement captures the seriousness of repudiation and the need for clarity:

It must be remembered that repudiation is a serious matter and not lightly to be found or inferred.

This was determinative because it explains why the Court refused to treat the vendors’ refusal to rectify as automatically ending the contract. Where an alleged repudiation is based on a dispute about how the contract operates, the Court demands a clear, objective basis before allowing termination.

Analysis of the Losing Party’s Failure

The Plaintiff’s failure can be analysed as a sequence of strategic and doctrinal missteps rather than a lack of genuine concern.

1. Over-reliance on a single clause without neutralising the permitted alterations regime

The Plaintiff’s argument elevated the style selection clause as absolute. The Court treated the later permitted alteration clauses as plainly operative and capable of permitting changes to finishes. In contract construction, the party who insists a clause is absolute must show why adjacent clauses do not qualify it. That was not established.

1. Treating an aesthetic discrepancy as a termination-level breach without establishing essentiality

Renunciation requires a fundamental obligation or an objective communication that substantial performance will not occur. Even if the Plaintiff felt the selected scheme was critical, the contract’s permitted alterations framework and the absence of evidence that quality was inferior made it difficult to classify the finish colour as fundamental in the relevant sense.

1. Choosing termination as the first-line remedy rather than preserving completion with a claim pathway

The Court pointed to other potential remedies, including compensation mechanisms, suggesting termination was not the contract’s intended solution for this kind of discrepancy.

1. Underestimating the remedial strength of specific performance in land contracts

In land sale disputes, a purchaser who refuses to complete must anticipate that a court may compel completion unless a strong equitable defence exists. The Plaintiff’s case did not establish a substantial defect or a contractual right to rescind.

1. Deposit strategy depended on establishing either valid termination or vendor inability

The deposit return case was structurally dependent on winning the core contract/repudiation contest or showing the vendors were not ready, willing, and able. Once specific performance was ordered, the deposit argument lost its foundation.

Reference to Comparable Authorities

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61: Repudiation as renunciation is assessed objectively; conduct must convey to a reasonable person unwillingness or inability to render substantial performance, or intention to perform only in a substantially inconsistent manner.

Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47: Repudiation is serious and not lightly found; courts require clear evidence before concluding a party has repudiated.

Laurinda Park Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23: Repudiation may be established where a party evinces an intention to fulfil the contract only in a manner substantially inconsistent with its obligations.

Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; [1973] HCA 14: Specific performance may be resisted where there is a substantial defect; minor or non-substantial variations may not bar specific performance.

Higgins v Statewide Developments Pty Ltd (2010) 14 BPR 27,293; [2010] NSWSC 183: Deposit retention may be unjust or inequitable in circumstances where the vendor’s position does not justify keeping the deposit, particularly where completion readiness is lacking.

Jin Yi Construction Pty Ltd v Romeciti Eastwood Pty Ltd [2022] NSWSC 56: Provides modern guidance on the equitable assessment of deposit return and the circumstances in which deposit forfeiture is inappropriate.

Implications

1. Contracts are not just paperwork; they are a map of risk. In off-the-plan deals, the clauses about permitted changes are the difference between “a promise” and “a promise with a safety valve”.

2. A termination letter can feel empowering, but it can also be a cliff edge. If you terminate without a solid contractual footing, you may be compelled to complete and pay the other side’s costs.

3. The law distinguishes disappointment from repudiation. A purchaser can be genuinely unhappy and still not have a legal right to walk away. The court’s focus is on obligations, not emotions.

4. If a contract provides a compensation pathway, courts often expect parties to use it. Completion plus compensation can be the legally safer route than refusal to settle.

5. Litigation is not only about being right; it is about being provably right, on time. Procedural discipline, including timely evidence, can shape outcomes as much as substantive arguments.

Q&A Session

Q1: If the vendor admits the finishes are the “wrong” colour, why cannot the purchaser terminate?

A1: Because admission of difference is not the same as admitting a breach that justifies termination. The legal question is whether the contract permitted the change, for example through a finishes alteration clause allowing similar finishes of at least equivalent quality. If permitted, the vendor has not renounced an obligation. Even if not permitted, termination requires the breach to justify termination or be a renunciation of a fundamental obligation.

Q2: Does the purchaser have any remedy if they must complete with the “wrong” finishes?

A2: Often, yes, but it depends on the contract. Off-the-plan contracts commonly provide mechanisms for claims, including compensation for error or misdescription, or a process tied to the disclosure statement and material particular change notices. A purchaser’s strongest practical position is frequently completion while preserving claims, rather than refusing to settle.

Q3: Why does the Court so readily order specific performance in land contracts?

A3: Equity traditionally treats land as unique. Money damages may not fully compensate for the loss of a particular property. Conversely, where a purchaser contracted to buy, the vendor may have structured finance and project outcomes around that sale. Unless a substantial defect or equitable bar is shown, courts may consider completion the most just remedy.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Off-the-plan residential contract for sale of land in New South Wales, dispute about finishes variation and style scheme selection, repudiation by renunciation allegation, deposit return claim, and vendor cross-claim for specific performance

Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

[Execution Instruction Applied: Category ⑤ Property, Construction and Planning Law]

The following core tests are provided as a rigorous reference framework only. Outcomes tend to be highly fact-sensitive and contract-specific, and the risk profile can vary materially depending on the precise clauses, the jurisdiction, and the evidence.

Core Test 1: Contractual Warranties and Construction Standards in a Property Context

Step 1: Identify express contractual construction obligations

• Extract all clauses requiring the vendor to construct in a proper and workmanlike manner and according to approvals and schedules.
• Identify documents incorporated by reference, such as the Finishes Schedule, Layout Plans, Development Consent, and any disclosure statement.

Risk note: Where the contract states that an Occupation Certificate or certifier certificate is conclusive evidence of compliance with approval-related requirements, purchasers may face a relatively high risk in arguing non-compliance with those approval obligations without strong contrary evidence.

Step 2: Identify contractual permitted variations and the hierarchy of terms

• Identify clauses permitting alterations to finishes and installed items, typically requiring similarity and at least equivalent quality.
• Check whether special conditions prevail over standard conditions, and whether any clause expressly limits purchaser claims arising from permitted alterations.

Risk note: A purchaser’s termination argument tends to be determined against the purchaser where the contract clearly permits alterations and restricts claims, unless the alteration falls outside the permitted class or triggers a rescission mechanism.

Step 3: Apply the “equivalent quality and similarity” inquiry

• Determine whether the changed item is properly characterised as a “finish” or “installed item”.
• Determine whether the altered item is similar in type and of at least equivalent quality.
• Separate subjective preference (colour or style taste) from objective quality (durability, specification grade, material class).

Risk note: Aesthetic differences alone tend to present a relatively high risk for purchasers seeking termination where the contract is drafted to permit equivalent-quality substitutions.

Step 4: Check whether the change triggers a “material particular change” regime

• Identify how “material particular” and “material particular change” are defined.
• Determine whether the change is one “likely to adversely affect the use or enjoyment” of the property.
• Identify whether the vendor served a notice and whether statutory rescission windows apply.

Risk note: If a purchaser cannot demonstrate that the change would likely adversely affect use or enjoyment in a material way, rescission rights tend to be difficult to establish.

Core Test 2: Defects and Materiality in Property Transactions

Step 1: Distinguish between “defects” and “variations”

• A defect often connotes something wrong in workmanship or compliance.
• A variation may be contractually permitted, particularly in off-the-plan settings.

Step 2: Assess “substantial defect” considerations relevant to specific performance

• Identify whether the issue affects habitability, structural integrity, safety, lawful occupation, or fundamental amenity.
• Consider whether the issue can be compensated in money without changing the essential character of the bargain.

Risk note: Courts tend to be cautious about refusing specific performance for non-substantial issues, especially where the rest of the property is delivered as promised.

Step 3: Consider remedy sequencing

• Even where a purchaser has a compensable complaint, the contract may require completion first, with claims resolved later through arbitration or other mechanisms.

Risk note: Refusing to complete can carry a relatively high risk of specific performance orders and adverse costs where the complaint is compensable rather than termination-justifying.

Core Test 3: Planning and Approval Compliance in Off-the-Plan Purchases

Step 1: Identify approval-linked obligations

• Check whether the contract ties construction to development consent, construction certificates, and occupation certificates.

Step 2: Understand conclusive evidence provisions

• Where the contract states that an Occupation Certificate is conclusive evidence of compliance with approval-related requirements, purchasers must consider that the contract may narrow dispute scope.

Risk note: Attempts to litigate approval compliance may tend to be determined against purchasers where conclusive evidence clauses operate and no exceptional circumstances are established.

3. Equitable Remedies and Alternative Claims

This section analyses potential “counter-attack” paths where statutory avenues do not deliver the desired outcome. The following are general reference pathways and must be assessed against the specific contract terms and evidence.

Promissory / Proprietary Estoppel

Step 1: Identify a clear and unequivocal representation

• Look for written or oral assurances such as “your apartment will have Harbour Scheme” repeated in marketing material, pre-contract emails, or settlement discussions.
• Confirm whether the contract includes an entire agreement clause limiting reliance on pre-contract representations.

Step 2: Identify detrimental reliance

• Evidence may include financing commitments, life decisions tied to move-in expectations, or costs incurred due to the specific promised feature.

Step 3: Unconscionability in resiling

• Consider whether it would be against conscience to permit the vendor to depart from the representation.

Likely constraint: In a detailed written contract with permitted variation clauses, estoppel arguments tend to face a relatively high risk unless the representation is separate, clear, and not contradicted by the written terms.

Unjust Enrichment / Constructive Trust

This pathway is less common in a standard purchaser-vendor relationship where the contract governs deposit and completion. However, it may arise in unusual cases, such as where funds are paid outside the contract or improvements are made with the vendor’s encouragement.

Step 1: Benefit at purchaser’s expense

• Identify payments beyond the contractual deposit or expenses incurred that unjustly enrich the vendor.

Step 2: Against conscience to retain

• Consider whether the vendor’s retention would be unconscionable absent restitution.

Likely constraint: Where the deposit regime is expressly governed by contract and statute, unjust enrichment claims tend to be constrained.

Procedural Fairness

This pathway is generally inapplicable because the dispute is private law, not administrative decision-making. It may become relevant only if a statutory decision-maker is involved, which is not typical for contract completion disputes.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

1. Off-the-plan rescission windows and notice requirements

• Where a contract or statute provides rescission rights triggered by a notice (such as a material particular change notice), timeframes tend to be strict, for example a 14-day rescission window after receipt of notice in some regimes.

1. Notice to complete mechanics

• Where time is not originally of the essence, vendors often convert the contract into one where time is of the essence by serving a notice to complete, setting a final completion date.

1. Deposit risk upon default

• Where a purchaser fails to complete, forfeiture risk can be significant, subject to statutory and equitable discretion.

Exceptional Channels (Crucial)

1. Material particular change with demonstrable material prejudice

• If the change is such that the purchaser would not have entered into the contract and would be materially prejudiced, rescission may be available where the contract and statutory regime support it.

1. Substantial defect affecting essential character or use

• If the variation or defect affects habitability, lawful use, or fundamental amenity, resisting specific performance may become more realistic.

1. Vendor inability to complete in accordance with contract

• If the vendor is not ready, willing, and able to complete, equitable relief may be refused and deposit return may become more likely.

Suggestion: Do not abandon a potential claim simply because the standard pathway seems closed. Carefully compare the facts to any exceptional channels in the contract and statutory framework. Exceptions are often the key to successfully framing relief, particularly where evidence shows genuine material prejudice.

5. Guidelines for Judicial and Legal Citation

Citation Angle:

It is recommended to cite this case in legal submissions or debates involving:

• Construction of off-the-plan contract clauses governing finishes, permitted variations, and claim limitations

• Repudiation by renunciation in the context of a contractual dispute about permitted performance

• The interaction between specific performance and deposit return discretion under Conveyancing Act 1919 (NSW) s 55(2A)

Citation Method:

As Positive Support: When your matter involves a finishes or specification variation that the contract arguably permits as an equivalent-quality substitution, citing this authority can strengthen an argument that refusal to reverse the variation is not renunciation and that specific performance remains available.

As a Distinguishing Reference: If the opposing party cites this case, you should emphasise the uniqueness of the current matter, such as a non-equivalent quality substitution, a change affecting use or enjoyment in a demonstrably material way, a failure to follow a mandatory notice regime, or a substantial defect that goes beyond aesthetics.

Anonymisation Rule: Do not use the real names of the parties; strictly use professional procedural titles such as Plaintiff / Defendant or Applicant / Respondent.

Conclusion

This case demonstrates that, in an off-the-plan land contract, the outcome tends to be determined less by the purchaser’s subjective disappointment and more by the contract’s risk allocation clauses and the objective legal tests for repudiation and equitable relief. The golden thread is simple: when the contract permits an equivalent-quality finish variation, a purchaser who terminates risks being compelled to complete and pay costs.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales (Plaintiff v First and Second Defendants [2025] NSWSC 1295), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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