Gardiner v Wheare

In *Gardiner v Wheare*, 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 by the settlement date.

The central legal issue before the Court of Appeal was whether the vendor's failure to give vacant possession on the stipulated date constituted a breach of a condition of the contract, thereby entitling the purchaser to terminate. The Court also had to consider the nature of the obligation to provide vacant possession and whether it had been fulfilled.

The Court of Appeal held that the vendor's obligation to give vacant possession was a condition precedent to the purchaser's obligation to complete the purchase. As the property was still occupied by a tenant at settlement, the vendor had failed to give vacant possession. This failure was a repudiatory breach of the contract, allowing the purchaser to terminate. The Court affirmed that vacant possession means the property is free from all persons and their belongings, and that a tenant's continued occupation, even under a lease that has expired, prevents vacant possession from being given.

Consequently, the Court of Appeal dismissed the vendor's appeal and affirmed the primary judge's finding that the purchaser was entitled to terminate the contract and recover their deposit.