McLean v Rowekamp

In *McLean v Rowekamp* [1995] NSWCA 287, the New South Wales Court of Appeal 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 central legal issue before the Court of Appeal was whether the vendor had breached the contract by failing to deliver vacant possession of the property on the settlement date. This involved an examination of the contractual terms and the circumstances surrounding the vendor's departure from the property.

The Court of Appeal found that the vendor had indeed breached the contract. It reasoned that the obligation to provide vacant possession meant that the property must be free of the vendor and any other persons, and their chattels, at the time of settlement. The vendor's failure to remove all of their belongings from the property meant that vacant possession had not been given, entitling the purchaser to terminate the contract. The Court applied the established legal principle that a vendor's obligation to give vacant possession is a fundamental term of a contract for the sale of land.

Consequently, the Court of Appeal dismissed the vendor's appeal and affirmed the purchaser's right to terminate the contract and recover their deposit.