TOPEL & TOPEL

In *Topel & Topel*, the Supreme Court of Victoria was asked to determine whether a party had breached their obligations under a contract for the sale of land. The dispute arose from allegations that the vendor had failed to provide vacant possession of the property by the settlement date, as stipulated in the contract.

The central legal issue before the Court was the interpretation of the contractual term requiring the vendor to give vacant possession. Specifically, the Court had to consider whether the presence of certain items belonging to the vendor, which remained on the property after the settlement date, constituted a failure to provide vacant possession. This involved an examination of what constitutes "vacant possession" in the context of a residential property sale under Victorian law.

Obradovic J reasoned that the term "vacant possession" requires the vendor to give up possession of the land and all that is upon it, to the exclusion of the vendor and any other person. The Court found that the items left on the property by the vendor were not so trivial or insignificant as to be disregarded. Their continued presence meant that the purchaser was not able to have exclusive possession of the property as at the settlement date. The Court applied the principle that a contractual term requiring vacant possession is a fundamental one, and a failure to comply with it can have significant consequences.

The Court ultimately found that the vendor had breached the contract by failing to provide vacant possession. The orders made reflected this finding, allowing the purchaser to terminate the contract and seek remedies for the breach.