Van Zeggeren v Borg

In *Van Zeggeren v Borg* [1996] NSWCA 544, 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 condition precedent was not a condition that went to the root of the contract, and therefore, the vendor's failure to obtain the approval by the specified date did not amount to a repudiation. The court reasoned that the contract did not expressly or implicitly make time of the essence for the obtaining of this approval. Consequently, the vendor's breach, while a breach of contract, was not so serious as to justify the purchaser's termination. The appeal was allowed, and the orders of the lower court were set aside.