Marshall v Brookes

In *Marshall v Brookes* [1995] NSWCA 275, the New South Wales Court of Appeal considered a dispute between the appellant, Marshall, and the respondent, Brookes, concerning the interpretation and enforceability of a contract for the sale of land.

The central legal issue before the Court was whether the contract for sale, which contained a special condition requiring the purchaser to obtain finance by a specified date, had been validly terminated by the vendor due to the purchaser's failure to secure that finance within the stipulated timeframe. The Court also had to determine whether the purchaser had taken all reasonable steps to obtain the necessary finance, as required by the contract.

The Court of Appeal held that the special condition was a condition precedent to the vendor's obligation to complete the sale. It reasoned that the purchaser bore the onus of proving that they had taken all reasonable steps to obtain finance. In this instance, the Court found that the purchaser had not discharged this onus, as their efforts to secure finance were insufficient and lacked the necessary diligence. Consequently, the vendor was entitled to terminate the contract.

The Court of Appeal dismissed the appeal and affirmed the decision of the primary judge, upholding the vendor's right to terminate the contract.