Rogers v WENTWORTH

In *Rogers v Wentworth*, 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 by the settlement date.

The central legal issue before the Court of Appeal was whether the vendor's failure to give vacant possession on the stipulated date constituted a breach of an essential term of the contract, thereby entitling the purchaser to terminate. The court also had to consider the effect of the purchaser's conduct in continuing to negotiate and seek an adjournment after the settlement date had passed.

The Court of Appeal held that the obligation to give vacant possession on the settlement date was a condition precedent to the purchaser's obligation to complete the purchase. While the vendor's failure to provide vacant possession was a breach, the court found that the purchaser, by its subsequent conduct, had waived its right to terminate the contract on that ground. The purchaser's actions indicated an intention to affirm the contract, despite the vendor's breach.

Consequently, the Court of Appeal dismissed the purchaser's appeal and upheld the trial judge's decision, which had found that the purchaser was not entitled to terminate the contract and was, in fact, in breach itself by failing to complete the purchase.