Brookes v Marshall

In *Brookes v Marshall*, 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 provide vacant possession as required by the contract.

The central legal issue before the Court of Appeal was whether the vendor's failure to remove certain chattels from the property constituted a breach of the contractual obligation to provide vacant possession. This required the Court to interpret the meaning of "vacant possession" in the context of a contract for the sale of land.

The Court held that "vacant possession" means that the purchaser is entitled to enter into possession of the property and to require the vendor and all other persons to leave the property. The presence of chattels, even if not affixed to the land, could prevent vacant possession if they were of such a nature or quantity as to substantially interfere with the purchaser's right to immediate and exclusive possession. In this instance, the Court found that the chattels left by the vendor did not prevent the purchaser from obtaining vacant possession.

Consequently, the Court of Appeal allowed the vendor's appeal, finding that the purchaser was not entitled to terminate the contract on the grounds of vacant possession. The orders of the primary judge were set aside.