Collier v Burn

In *Collier and Another v Burn and Others*, the New South Wales Court of Appeal considered a dispute arising from a contract for the sale of land. The purchasers, Collier and Another, sought to terminate the contract and recover their deposit, alleging that the vendors, Burn and Others, had failed to provide vacant possession as required by the contract.

The central legal issue before the Court of Appeal was whether the vendors had breached the contract by failing to deliver vacant possession of the property on the settlement date. This involved determining the meaning of "vacant possession" in the context of the contract and assessing whether the presence of certain chattels and the continued occupation by a tenant constituted a failure to provide vacant possession.

The Court of Appeal held that the vendors had indeed breached the contract. Applying the established legal principle that "vacant possession" requires the vendor to give up possession and control of the land, free from any encumbrances or rights of occupation by third parties, the Court found that the presence of the tenant and certain chattels prevented the purchasers from obtaining vacant possession. The Court reasoned that the tenant's continued occupation, even if the tenant was aware of the sale, meant that the purchasers could not immediately occupy or control the property as contemplated by the contract.

Consequently, the Court of Appeal ordered that the contract be terminated and that the vendors repay the deposit to the purchasers.