07 Feb 15 FEBRUARY 2011 OBLIGATION OF BUYER TO TENDER BALANCE PURCHASE MONIES AT SETTLEMENT
Q.If the Seller is in breach of contract (eg. where the seller can not remove a mortgage or caveat over the title by the settlement date), can the Buyer claim damages for that breach without tendering the balance of the purchase price, to show they were ready, willing and able to complete the Contract?
A. Generally, if the Seller has advised that they definitely can not complete the sale, the Buyer may not be obliged to tender the balance purchase price at settlement but will need to show that at settlement they would be ready, willing and able to settle, to claim damages. But if the Seller has breached a non essential (minor) term of the Contract which doesn’t give the Buyer the immediate right to terminate the Contract at that time, the Buyer will need to tender the balance of the purchase price at settlement.
TIP: If the Seller is in breach of Contract it is wise for the Buyer to arrange settlement, calculate settlement figures, attend settlement and tender the balance purchase price or at least attempt to tender and show that this was done.