A change to an off-the-plan property doesn’t automatically let you end the contract.
Under NSW law, you may have two choices: rescind the contract, meaning unwind it, or stay in the contract and claim compensation capped at 2% of the purchase price. Either choice depends on the change involving a “material particular”, materially prejudicing you, and being something that would have stopped you entering the contract had you known about it.
The immediate issue is time. You normally have only 14 days after receiving the vendor’s Notice of Changes, or the registered plan revealing the inaccuracy, to serve the required notice. A compensation claim must also be made before settlement.
What should the developer have disclosed when you signed?
For an off-the-plan contract covered by the NSW regime, the vendor must attach an approved Disclosure Statement before you sign. It includes a draft plan prepared by a registered surveyor and, where relevant, documents such as the proposed schedule of finishes, draft by-laws, proposed easements and covenants, and draft management or development statements.
If the required Disclosure Statement, draft plan or prescribed attachments were missing, a separate right can allow rescission by written notice within 14 days after the contract was made, provided settlement hasn’t occurred. That is different from the remedy for a later material change and doesn’t use the same material-prejudice test.
What is a “material particular”?
A material particular is not simply any difference between the sales material and the finished property. The statutory definition covers specified information where a change will, or is likely to, adversely affect your use or enjoyment of the lot.
It can concern:
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the draft plan;
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draft by-laws;
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an easement, restriction or covenant;
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the schedule of finishes; or
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prescribed management statements or development contracts.
A meaningful loss of internal area, a different internal configuration, an easement through usable land, a relocated lot that affects access or outlook, downgraded specified finishes, or a by-law restricting your intended use could affect your use or enjoyment enough to qualify.
Whether a change is material will depend on the circumstances and the terms of the contract, which may specify particular thresholds or rights in relation to changes in floor area or other aspects of the development.
Some changes are expressly excluded, including a changed proposed lot number or street name. A change to parking or storage for a proposed strata lot is also excluded where it is made in accordance with the contract. This makes the contract’s variation wording particularly relevant to car spaces and storage cages.
When must the vendor notify you?
If the vendor becomes aware that the Disclosure Statement was, or has become, inaccurate in a material particular, it must serve the approved Notice of Changes at least 21 days before settlement.
The vendor must also give you the registered plan and the documents registered with it before settlement. You cannot be required to settle earlier than 21 days after receiving them.
The two periods do different jobs. The 21 days provides time before settlement; the 14 days is your deadline to serve a rescission notice or statutory compensation claim after the relevant change is disclosed. It is essential not to wait until settlement to object.
When can you rescind because of a change?
You need evidence for both parts of the test:
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you would not have entered the contract had you known about the change or inaccuracy; and
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the change or inaccuracy materially prejudices you.
For example, if you bought because a room was large enough for accessibility equipment and the registered plan materially reduces and reconfigures that room, your original requirements, plans and communications may help show why you would not have contracted and how the change affects you. A minor dimension change with no practical effect is less likely to satisfy both limbs.
A rescission notice must be written, signed by you or your solicitor and served on the vendor or vendor’s solicitor no later than 14 days after you receive the Notice of Changes or relevant registered plan. If there is more than one purchaser, each purchaser or their respective solicitors must sign.
If your notice is valid, the contract is treated as though it never existed, and your deposit must be returned. If you don’t serve a valid notice on time, the Disclosure Statement is treated as amended to incorporate the notified or registered information.
Can you settle and claim compensation instead?
If you have a right to rescind under the change provisions, you can choose instead to claim compensation of up to 2% of the purchase price. The cap isn’t an automatic entitlement: you must first satisfy the test for a right to rescind and support the amount claimed.
Your signed written claim must be served before settlement and within the same 14-day period. It must state the amount claimed, identify the change, explain why you wouldn’t have entered the contract had you known, and explain how the change materially prejudices you.
Serving the claim doesn’t stop settlement. If the issue is resolved beforehand, the agreed or determined compensation is adjusted at settlement. If not, the prescribed process withholds the claim amount while the claim is resolved.
What if the developer disputes the compensation claim?
The vendor may rectify the issue to your satisfaction, or the parties may agree an amount. If the claim isn’t resolved within one month after service or by settlement, whichever comes first, the parties must appoint an arbitrator.
If the parties still have not appointed one within the earlier of two months after the claim was served or one month after settlement, either party can request an appointment using the process approved by the Secretary.
The arbitrator cannot award more than you claimed, may award costs and makes a final decision. Once the arbitrator decides, you can no longer rescind under the statutory change provisions for that change.
There is also a final deadline. A claim is treated as withdrawn if an arbitrator hasn’t been appointed within the earlier of four months after service of the claim or three months after settlement. Calendar every step.
What documents should you compare immediately?
Put the original Disclosure Statement, draft plan, schedule of finishes, draft by-laws and relevant management statements beside every Notice of Changes and the final registered documents. Then review the contract’s variation and notice clauses and record what the difference does to your actual intended use.
A surveyor, valuer, architect or other expert may help measure the change and its practical or financial effect. Expert evidence isn’t an express prerequisite for serving notice, but obtaining the right evidence quickly can protect your position.
Is a sunset clause the same issue?
No. A sunset clause deals with a stated event - often registration of title or an occupation certificate - not occurring by a specified date. It isn’t a general remedy for a changed apartment.
A developer generally cannot use a sunset clause to end the contract without giving at least 28 days’ written notice and then obtaining every purchaser’s written consent or a Supreme Court order, unless a regulatory permission applies. Your own rights under a purchaser sunset clause depend on the contract.
Could you have other remedies?
These statutory rights may sit alongside other claims. For example, a misleading representation, breach of contract or another statutory warranty may give you a separate remedy. Availability depends on the wording, evidence and circumstances, and different deadlines may apply.
Because the statutory 14-day period is so short, obtain an off-the-plan contract review before sending an informal response, agreeing to settle or choosing compensation over rescission.
If a notified change may affect your purchase, contact Biz Lawyers & Advisory or call 1800 893 836 before the 14-day response period expires.
This article provides general information, not legal advice. Rights and deadlines depend on the contract, disclosure material, notices, registered documents and circumstances.
Primary sources
Law and guidance checked 13 August 2026.
