Problem with ‘Off the Plan’ Purchase – Developer not honouring contract

We bought an apartment off the plan last year. The building is a warehouse conversion and a lot of the industrial elements have been left in place.

The original ceiling was raw, unpainted concrete & it was the main selling point for us – we loved the industrial edge it lent the apartment.

The ceiling was so important that we had a special condition placed in our concrete that it be left unpainted.

Anyway, about 8 weeks ago when I was checking with the builder about some tiles we had supplied, he informed me that the unfortunately the ceiling had been painted. I told him about the condition in our contract & he said the paint would be removed.

About 4 weeks later we received word that the strata plan was being registered and that bank valuations & pre-settlement inspections would be happening shortly after.

I thought I best contact the builder to ensure the paint had been removed. He would not speak with me.

In fact, no-one attached to the development would speak to me. 

Finally their solicitor contacted our conveyancer and told him that “yes the ceiling has been painted” and “no we are not removing it”.

They offered to let us out of our contract “without penalty”

Our conveyancer suggested we then hire a lawyer as he can’t handle anything involving possible litigation.

I was always under the impression that a contract was legally binding?

I am amazed that they are refusing to remedy a situation that is clearly their fault.

We have now been forced, at added expense, to hire a solicitor who has informed them of the contract condition and that we want the paint removed.

Unfortunately, they are taking their time in responding – not allowing our bank in to do a valuation and basically holding up our settlement. They are just dragging this out.

As this was their mistake we want the paint removed and we want to be able to move in at the same time as every other owner does. We don’t want to be held up because of THEIR mistake.

They have had 8 weeks that we know of to remedy the situation and have chosen to do nothing.

We believe it was done deliberately as they knew how important the ceiling was to us – we think they are hoping we will rescind the contract, so they can sell the apartment at a higher price.

Rescinding is out of the question now as we have:

1. supplied our own tiles for the apartment
2. bought furniture for this particular apartment
3. Will no longer get a stamp duty saving
4. A comparable apartment would cost us some $70K more

If they get away with this, it is as good as saying a contract isn’t worth the paper it is written on.