Hewitt v Debus

The appeal in *Hewitt v Debus* concerned a dispute between a vendor and a purchaser regarding a contract for the sale of land. The vendor had purported to terminate the contract due to an alleged default by the purchaser. The primary question at trial was whether time was of the essence for the completion of the contract, and the trial judge found that it was not, rendering the termination ineffective. The appeal to the New South Wales Court of Appeal raised the question of whether an inquiry into whether time was of the essence was excluded by the conduct of the parties.

The central legal issues before the Court of Appeal were whether the parties had, by their conduct, excluded an inquiry into whether time was of the essence for the contract's completion, and if not, whether the provisions of section 13 of the *Conveyancing Act 1919* (NSW) were applicable. The appellant vendor relied on the decision in *Honner v Ashton* to argue that the inquiry was excluded.

By majority, the Court of Appeal held that the inquiry into whether time was of the essence was not excluded by the parties' conduct. The majority found it necessary to consider the application of section 13 of the *Conveyancing Act 1919*, which deals with the effect of a notice to complete. However, the Court noted that the parties had not litigated the application of this section at trial. Consequently, the Court determined that it could not decide the case on a basis that had not been fully argued and considered by the parties.

The appeal was dismissed by majority. Leave to appeal was granted, and the appellant was ordered to file the notice of appeal within seven days. The appellant was also ordered to pay the costs of the respondent.