Burton v Anderson

In *Burton v Anderson*, the New South Wales Court of Appeal considered a dispute between the vendor and purchaser of a property. The purchaser sought to terminate the contract of sale, alleging that the vendor had failed to provide a clear title to the land. The core of the dispute revolved around the interpretation of a clause in the contract concerning the vendor's obligation to deliver vacant possession.

The Court of Appeal was required to determine whether the vendor's failure to remove a tenant from the property by the settlement date constituted a breach of contract that entitled the purchaser to terminate. Specifically, the court had to consider the meaning and effect of the contractual provision requiring the vendor to give vacant possession, and whether the presence of a tenant at settlement amounted to a failure to do so.

The Court of Appeal held that the vendor's obligation to give vacant possession meant that the property must be free from any persons who had a right to remain in possession at the time of settlement. As the property was occupied by a tenant with a valid lease, the vendor had failed to give vacant possession as required by the contract. This failure was considered a fundamental breach, entitling the purchaser to terminate the agreement. The court applied the principle that a vendor must deliver the property in a state that allows the purchaser immediate and unrestricted possession, free from any encumbrances or rights of occupation by third parties.