Harrison v McKay

In *Harrison v McKay*, the Supreme Court of New South Wales 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 as required by the contract. The vendor, in turn, argued that they had fulfilled their contractual obligations.

The central legal issue before the Court was whether the vendor's actions constituted a breach of the contractual term requiring vacant possession. Specifically, the Court had to determine if the presence of certain items and the continued occupation of the property by the vendor's former tenant, despite the settlement date having passed, amounted to a failure to deliver vacant possession.

The Court reasoned that the term "vacant possession" requires the vendor to give up physical possession of the property and to remove all persons and chattels that are not the property of the purchaser. In this instance, the Court found that the vendor had not taken sufficient steps to ensure the property was entirely free of the former tenant's belongings and occupancy by the settlement date. Consequently, the Court held that the vendor had breached the contract by failing to provide vacant possession.

The Court ordered that the purchaser was entitled to terminate the contract and recover their deposit.