Cleur v Cole

In *Cleur v Cole*, 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 a crucial document required by the contract.

The central legal issue before the Court of Appeal was whether the vendor's failure to provide a certificate of compliance for a swimming pool fence, as stipulated in the contract, constituted a breach that entitled the purchaser to terminate the agreement. The Court also had to determine the proper interpretation of the relevant contractual clauses and the implications of the vendor's subsequent attempts to rectify the omission.

The Court of Appeal held that the vendor's failure to provide the certificate of compliance by the settlement date was a breach of a condition of the contract. Applying principles of contract law, the Court reasoned that the provision of such a certificate was a material term, and its absence at settlement meant the vendor was not ready, willing, and able to complete the sale. The Court found that the purchaser was therefore entitled to terminate the contract.

Consequently, the Court of Appeal dismissed the vendor's appeal and affirmed the primary judge's decision, which had found in favour of the purchaser and ordered the return of the deposit.