Foran v Wight [1989] HCA 51

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Gaudron JJ. Foran v Wight [1989] HCA 51

ORDER Appeal allowed with costs. Set aside the orders of the Court of Appeal of New South Wales dated 24 December 1987 and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 15 Mason C.J.

This appeal raises an important question of principle. It concerns the entitlement of purchasers under a contract for the sale of land to terminate the contract and recover their deposit following a statement by the vendors shortly prior to completion that they would be unable to complete on the date fixed for completion, completion on that date being an essential term of the contract, in circumstances in which the purchasers did not treat that repudiation as an anticipatory breach but terminated the contract after the time fixed for completion in consequence of the vendors' failure to complete on the appointed day.

The facts may be shortly stated. By a contract dated 24 December 1982 the vendors agreed to sell and the purchasers agreed to buy a parcel of land at Ebenezer for $75,000. The contract provided for payment of a deposit in the sum of $7,500 on execution of the contract. This sum was paid, leaving a balance of $67,500 to be paid on completion. The contract fixed 22 June 1983 as the date for completion, time being of the essence in this respect.

The contract contained a number of special conditions, one of which was in these terms:

The Purchaser shall not make any requisition, objection or claim for compensation in respect of Right of Way 3 metres wide shown on the draft Plan attached hereto and marked with the letter " a " and draft 88b Instrument attached herewith and marked with the letter " b ". The Purchaser acknowledges that he is aware that the attached draft Plan and draft 88b Instrument have not been registered and the Vendor warrants that he will attend to the registration of the said Plan together with 88b Instrument prior to completion.