Canning v Temby [1905] HCA 45

Canning v Temby [1905] HCA 45

The terms regarding payment and delivery of title deeds were concurrent conditions, and as the date for performance was within the vendor's knowledge, she was required to notify the purchaser of readiness to deliver and set a reasonable time for completion. In this case, no such notice was given and the fact that the purchase money did not arrive by 1st September was not, in itself, a breach. Therefore, no liability for breach arose from non-payment before that date.

Parties
Appellant: Cassie; Respondents: Temby and Others
Jurisdiction
Australia
Judgment Date
26 October 1905
Procedural Posture
Appeal / On Appeal From the Supreme Court of Western Australia
Outcome
appeal dismissed
Legal Topics
Performance of Contract, Reasonable Time, Sale of Land, Concurrent Conditions, Waiver, Notice Requirement, Breach of Contract
Contract Law Property Law Performance of Contract Reasonable Time Sale of Land Concurrent Conditions Waiver Notice Requirement +1 more

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Parties

Cassie

Appellant

Temby and Others

Respondents

Procedural Posture

Appeal / On Appeal From the Supreme Court of Western Australia

Legal Issues

  1. 1 Whether failure to pay the purchase money by 1st September constituted a breach of contract
  2. 2 Whether time was of the essence in the contract for sale of land
  3. 3 Whether payment and delivery of title deeds were concurrent conditions requiring notice by the vendor

Ratio Decidendi

The terms regarding payment and delivery of title deeds were concurrent conditions, and as the date for performance was within the vendor's knowledge, she was required to notify the purchaser of readiness to deliver and set a reasonable time for completion. In this case, no such notice was given and the fact that the purchase money did not arrive by 1st September was not, in itself, a breach. Therefore, no liability for breach arose from non-payment before that date.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs.
  • Appellant and respondents each to pay their own costs. Trustees' costs as between solicitor and client to be paid out of the same fund as previously ordered.