Hall v Foster [2013] NSWSC 620

A property was sold conditional upon registration of a subdivision. A large deposit was paid (the repayment of which should subdivision not take place was secured by a mortgage).

The subdivision never went through and the mortgagee (the erstwhile purchaser) sought possession from the mortgagor (the erstwhile vendor).

The vendor argued that the purchasers should not have possession of the property pending the sale because there could be no confidence that they would pursue the sale with their best efforts. The vendor also argued that the purchasers should only be allowed possession when the proposed sale was completed.

The judge stated that the vendor’s lack of confidence about whether the sale would proceed was irrelevant to whether the purchasers had a legal right to possession. Further, the suggestion that there be an order allowing possession only after completion of the sale had no basis in law.

The judge decided that the only basis that he could delay possession was because of hardship to the vendor who was still living in the property. His Honour gave a judgment for possession to the purchasers, but ordered that they could not issue the writ of possession until a date 10 weeks later, so that the vendor would have time to find somewhere else to live.

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