› Continuing declarations of inability and unwillingness to perform
› Whether purchasers wholly and finally disabled from performing essential terms
› Continuing repudiation entitling vendor to terminate
Contract
› Repudiation and non-performance
› Election
› Election to affirm by commencing proceedings for specific performance
› Whether vendor precluded from terminating based on subsequent continuing repudiation
› Whether unretracted declarations of inability and unwillingness constituted further repudiatory conduct
Conveyancing
› Breach of contract for sale and remedies
› Vendor's remedies
› Notice to complete
› Whether notice to complete required before vendor can terminate where purchaser has repudiated
› Not required where conduct amounts to repudiation rather than mere delay
Conveyancing
› Breach of contract for sale and remedies
› Vendor's remedies
› Resale
› Duty of vendor on resale
› Mitigation of loss
› Whether vendor acted reasonably in selling by private treaty without marketing campaign or auction
Quick Take
1A vendor who elects to sue for specific performance is not irrevocably precluded from later terminating and claiming damages where the purchaser's unretracted declarations of inability and unwillingness to perform constitute continuing repudiation after the affirmation — the earlier declarations remain as a fact in the history giving unmistakeable colour to continued inactivity.
2No notice to complete is required before termination where the purchaser's conduct amounts to repudiation (renunciation or factual inability to perform) rather than mere delay in performance; the cases requiring notice to make time essential address delay, not repudiation.
3Under cl 9.3.1 of the standard NSW contract for sale, the deficiency on resale is assessed by reference to the price of the first contract if completed according to its terms; payments contingent upon completion (such as special condition interest) that never became payable cannot be included, but land tax incurred as a consequence of the purchaser's non-compliance is recoverable as a reasonable expense under the second limb of cl 9.3.1.
Case Details
Citation[2014] NSWCA 190
Reported(2014) 87 NSWLR 119
CourtNSWCA
JurisdictionNew South Wales
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