Hachem v Cimijotta

In *Hachem v Cimijotta* [1996] NSWCA 239, the New South Wales Court of Appeal considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser had sought to terminate the contract of sale, alleging that the vendor had failed to provide vacant possession by the settlement date. The vendor, in turn, argued that the purchaser was not entitled to terminate and sought to enforce the contract.

The central legal issue before the Court of Appeal was whether the vendor's failure to provide vacant possession by the contractual settlement date constituted a repudiation of the contract, thereby entitling the purchaser to terminate. The court also had to consider the effect of the purchaser's conduct following the settlement date and whether this conduct affirmed the contract.

The Court of Appeal held that the vendor's failure to provide vacant possession by the settlement date was a breach of a condition of the contract, but not necessarily a repudiation. The court reasoned that a failure to provide vacant possession on the settlement date does not automatically amount to a repudiation unless it can be shown that the vendor evinced an intention no longer to be bound by the contract or to fulfil it only in a way substantially inconsistent with the purchaser's rights. In this instance, the court found that the vendor's actions did not demonstrate such an intention. Furthermore, the court determined that the purchaser, by continuing to pursue the transaction after the settlement date, had affirmed the contract, thereby losing the right to terminate.

Consequently, the Court of Appeal dismissed the purchaser's appeal and upheld the primary judge's decision, which had found in favour of the vendor. The orders made were that the purchaser's appeal be dismissed with costs.