Masterton & Casey

Masterton & Casey concerned a dispute between a vendor and a purchaser of land. The purchaser sought to terminate the contract of sale on the grounds that the vendor had failed to provide a certificate of compliance for a swimming pool, which was a condition precedent to settlement. The vendor argued that the purchaser had waived this condition and that the contract was still valid. The matter came before Young J in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the purchaser had waived the requirement for the vendor to provide a certificate of compliance for the swimming pool. This involved an examination of the conduct of the parties and the surrounding circumstances to determine if the purchaser had, by their actions or inactions, evinced an intention to abandon their right to insist on the performance of that condition.

Young J found that the purchaser had not waived the condition. His Honour reasoned that the purchaser had consistently sought to obtain the certificate and had not indicated any intention to proceed to settlement without it. The court applied the principles of waiver, which require a clear and unequivocal intention to abandon a known right. In this instance, the purchaser's actions did not demonstrate such an intention, and therefore the condition precedent remained operative.

Consequently, the court held that the vendor's failure to provide the certificate of compliance constituted a breach of the contract, entitling the purchaser to terminate. The orders made reflected this finding, allowing the purchaser to terminate the contract and recover their deposit.