Botten v Wellings

In *Botten v Wellings*, the New South Wales Court of Appeal considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser sought to terminate the contract of sale, alleging that the vendor had failed to comply with a condition precedent.

The central legal issue before the Court of Appeal was whether the vendor's conduct constituted a repudiation of the contract, thereby entitling the purchaser to terminate. Specifically, the court had to determine if the vendor's failure to obtain a necessary council approval by the stipulated date, and their subsequent actions, demonstrated an intention no longer to be bound by the contract.

The Court of Appeal held that the vendor's conduct did not amount to a repudiation. It reasoned that the failure to obtain the council approval by the specified date, while a breach of the contract, did not necessarily indicate a complete refusal to perform the contract's essential obligations. The court emphasised that for conduct to be repudiatory, it must be such as to demonstrate a clear intention to abandon or refuse to perform the contract. The vendor's actions, in the court's view, did not reach this threshold.

Consequently, the Court of Appeal found that the purchaser was not entitled to terminate the contract on the grounds of repudiation.