The recent case of Alexakis v Wan [2021] NSWSC 367 considered a contract for the sale of land, where the deposit was due to be paid in two instalments. The question was whether the second instalment was required to be paid on 4 August 2019, or by 31 August 2019, based on the construction of the contract. This was determined under s 181(1)(d) of the Conveyancing Act 1919 (NSW) which defined a ‘month’ as a ‘calendar month’ as per the definition in s 21 of the Interpretation Act 1987 (NSW).

The vendors were thereby entitled to terminate the contract on 5 August 2019. The breach of the contract brought about by the purchaser’s mistake gave the vendors a right to terminate, as the mistake was not caused by the conduct of the vendors, nor did they contribute to the mistake.

The breach was held to be a serious breach of an essential time requirement, and it was not unconscientious for the vendors to rely upon that breach in their termination of the contract. The plaintiff was denied equitable relief and the forfeit of the deposit of 5% of the purchase price was not found to be unjust or inequitable in the circumstances.

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