An express contractual right to terminate upon a purchaser's default in payment does not, of itself, exclude the inquiry into whether time is of the essence of the contract. The approach in Honner v Ashton, that the essentiality of time is irrelevant where there is an express contractual right to terminate, was rejected by the majority. The statement of a contractual right to terminate is one matter to be taken into account in determining whether the parties made timely performance essential, but it is not conclusive. The question whether s 13 of the Conveyancing Act 1919 (NSW) precludes the vendor from relying on the common law right to terminate was left open, as it had not been litigated.
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