Symons v Cerruto

In *Symons v Cerruto* [1990] NSWCA 198, 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 council 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 council 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 purchaser, who had the right to waive it. As the purchaser had not unequivocally indicated an intention to terminate the contract prior to the vendor's actions, the vendor's conduct was not a repudiation. The Court applied principles relating to conditions precedent and repudiation, emphasizing that a party's conduct must clearly demonstrate an intention no longer to be bound by the contract for it to be considered a repudiation.

The Court of Appeal allowed the vendor's appeal, setting aside the order for specific performance granted to the purchaser at first instance. The purchaser was not entitled to terminate the contract.