Veratau v Wimborne

In *Veratau v Wimborne* [1994] NSWCA 333, 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 by the contractual settlement 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 pursue the contract after the settlement date had passed.

The Court of Appeal held that the obligation to give vacant possession by the settlement date was a condition precedent to the purchaser's obligation to complete the purchase. It reasoned that the vendor's inability to provide vacant possession on the due date was a fundamental breach of the contract. The Court further found that the purchaser had not waived this essential term by their subsequent actions, as they had promptly notified the vendor of their intention to terminate upon discovering the breach.

Consequently, the Court of Appeal dismissed the vendor's appeal and affirmed the primary judge's decision that the purchaser was entitled to terminate the contract and recover their deposit.