Waters v Herbert

In *Waters v Herbert*, 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, and their subsequent actions, evinced an intention no longer to be bound by the contract.

The Court of Appeal found that the vendor's conduct did not amount to a repudiation. It reasoned that the condition precedent, while not fulfilled by the specified date, was not of such a fundamental nature that its non-fulfilment, in the circumstances, indicated an intention by the vendor to abandon the contract. The Court applied the principles of contract law relating to repudiation, emphasizing that a party's conduct must clearly demonstrate an intention to be no longer bound by the contract for it to be considered a repudiation. The purchaser's attempt to terminate was therefore unsuccessful.