In the case of Mehmet v Carter (2017) NSWCA 305 the Court considered whether aboriginal objects constitute a defect in title under a sale of land contract.  The case involved a Purchaser who entered into a contract for the purchase of a $3 million Byron Bay property. In the week following the payment of a 10% deposit, the solicitor acting on behalf of both parties discovered the existence of historical aboriginal objects on the land. The Purchaser argued that such objects constituted a defect in title, and subsequently advised the vendors that the purchase would be incomplete unless the defect was remedied. The vendors maintained that such presence was not a defect in title, issued a notice to complete and claimed interest for the purchasers’ delay in completion. After settlement was not effected, the purchasers terminated the contract for the failure of the vendors to convey good title, to which the vendors countered that the contract had been repudiated. The Court ultimately determined that the existence of the Aboriginal objects did not amount to a defect in title as they were property of the Crown, did not form part of the contract of sale and a reasonable person would not require the vendors to transfer ownership of objects that they didn’t own.  Accordingly, the purchasers were not entitled to terminate the contract.

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