Nolan v Curby

In *Nolan v Curby* [1995] NSWCA 324, 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 comply with a condition precedent.

The central legal issue before the Court of Appeal was whether the vendor's conduct constituted a repudiation of the contract, thereby entitling the purchaser to terminate. Specifically, the court had to determine if the vendor's failure to obtain a necessary approval by the stipulated date amounted to a breach so fundamental as to discharge the contract.

The Court of Appeal held that the vendor's failure to obtain the required approval by the contractual date did not, in itself, amount to a repudiation of the contract. The court reasoned that the condition precedent was for the benefit of the vendor, and their failure to fulfil it did not necessarily indicate an intention to abandon the contract. The court applied the principles of contractual interpretation, focusing on the intention of the parties at the time the contract was formed and the nature of the breach. The court found that the purchaser had not established that the vendor's conduct evinced a clear intention no longer to be bound by the contract.

Consequently, the Court of Appeal found that the purchaser was not entitled to terminate the contract and dismissed the appeal.