Robinson v Nishtom Pty Limited

In the matter of Robinson v Nishtom Pty Limited, the dispute centred on a loan by way of vendor finance, under special conditions in a Contract for Sale, for a property that was vendor occupied under a licence. The court was tasked with determining the terms of the licence fee payable by the vendor, specifically whether it was due until the later of the term of the licence or the date of vacant possession. The vendor had remained in occupation beyond the six-month term, leaving stock, car parts, and other objects on the site, and no vacant possession was achieved until the site was cleaned up in 2008. The loan agreement and mortgage were undated and executed some time after the Contract for Sale. The court had to consider whether the undated loan agreement varied the Contract for Sale, which had different terms for repayment, and whether the mortgage secured the monies of the vendor finance loan.

The court determined that the loan agreement did not purport to vary the terms of the Contract for Sale, and the two documents could not be read together. The undated loan agreement did not specify the loan it secured, and the mortgage did not secure the monies of the vendor finance loan. The court further examined the issue of what constituted vacant possession under the circumstances. The plaintiff, the bankrupt vendor's trustee in bankruptcy, sought an order for possession, but the court dismissed the claim under Part 13 Rule 13.4(1)(b).

The court's reasoning was that the terms of the licence were clear and the vendor had not achieved vacant possession as required by the contract. The court found that the undated nature of the loan agreement and mortgage did not affect the enforceability of the Contract for Sale or the terms of the licence. The court held that the plaintiff's claim for possession was dismissed, and no order for possession was made. The court's decision clarified the terms of the licence and the requirements for vacant possession in vendor finance arrangements.