Viavattene v Birch

In *Viavattene v Birch*, the County Court of Victoria considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser, Ms Birch, sought to terminate the contract of sale, alleging that the vendor, Mr Viavattene, had breached a contractual term requiring the property to be vacant on settlement. The vendor maintained that the contract had not been breached and that the purchaser was not entitled to terminate.

The central legal issue before the court was whether the vendor's failure to ensure the property was vacant on the settlement date constituted a repudiatory breach of the contract, thereby entitling the purchaser to terminate. This required the court to interpret the relevant contractual provisions and determine the significance of the vendor's obligation regarding vacant possession.

Judge Jarrett found that the contract of sale contained an express term requiring the vendor to give vacant possession of the property on settlement. The evidence established that at the time of settlement, the property was not vacant, as a tenant remained in occupation. The court held that the vendor's failure to provide vacant possession was a breach of a fundamental term of the contract. This breach was of such a nature that it deprived the purchaser of substantially the whole benefit of the contract, amounting to a repudiation. Consequently, the purchaser was entitled to accept the repudiation and terminate the contract.

The court ordered that the contract of sale be terminated and that the vendor repay the deposit to the purchaser.