Wayman v DAVIES

In *Wayman v Davies and Anor* [1998] NSWCA 255, the New South Wales Court of Appeal considered a dispute concerning the enforceability of a contract for the sale of land. The appellant, Mr. Wayman, sought to enforce a contract against the respondents, Mr. and Mrs. Davies, who had agreed to sell their property to him. The central issue revolved around whether the contract had been validly terminated by the respondents.

The Court was required to determine whether the respondents were entitled to terminate the contract on the grounds of the appellant's alleged repudiation. Specifically, the Court had to consider whether the appellant's conduct, in failing to provide a deposit by the stipulated date, constituted a repudiatory breach of the contract, thereby entitling the respondents to accept the repudiation and terminate the agreement.

The Court of Appeal found that the respondents had not been entitled to terminate the contract. It held that the failure to pay the deposit by the specified date did not, in the circumstances, amount to a repudiation of the contract. The Court reasoned that the time for payment of the deposit was not of the essence of the contract, and the respondents had not made time of the essence by serving a valid notice to complete. Consequently, the respondents' purported termination of the contract was wrongful.

The Court of Appeal allowed the appeal, setting aside the orders of the primary judge and ordering specific performance of the contract in favour of the appellant.