Vendor default response workflow
Vendor default is rarer than purchaser default, and the remedies are richer — specific performance, damages, and in some cases rescission and return of deposit with interest. The sequence matters: issue the right notice, preserve rights under the contract, and elect the remedy with the best commercial outcome.
This is an 8-step workflow for a purchaser responding to vendor default under the 2022 edition contract for sale of land (NSW) and Conveyancing Act 1919 (NSW). It runs from breach identification through notice to complete, specific performance, and damages.
Before you start
- Signed costs agreement and conflict check
- Executed contract of sale and all variations
- Settlement notice and correspondence
- Instructions on desired outcome (completion, rescission, damages)
The workflow
Identify the breach with precision
Identify the breach by reference to the contract — failure to settle, failure to deliver vacant possession, failure to satisfy a special condition, or a title defect.
Confirm purchaser readiness
Confirm the purchaser was and remains ready, willing and able to settle — financing approved, funds available, transfer documents signed — so any counter-allegation of purchaser default is defeated.
Issue notice to complete (where time not already essential)
If time was not of the essence, issue a notice to complete giving a reasonable period (commonly 14 days). Record the notice and any extension.
Elect remedy: completion, rescission, or damages
Advise the client in writing on electing between completion with damages, rescission with return of deposit, or specific performance. The election must be unequivocal.
File caveat to protect equitable interest
Where the client intends to pursue specific performance, lodge a purchaser's caveat under s 74F of the Real Property Act 1900 (NSW) to protect the equitable interest.
Issue Supreme Court proceedings for specific performance
Where specific performance is sought, issue Supreme Court proceedings under the Equity List, seeking orders for completion and damages in addition. Serve with a supporting affidavit.
Calculate and claim damages
Calculate consequential damages — delay costs, additional financing, alternate accommodation, and where rescission is elected, damages for loss of bargain.
Settle on revised terms or conclude litigation
Most vendor defaults resolve on revised terms — extended completion with compensation, or rescission with return of deposit plus costs. Document any settlement by deed.
What you will have at the end
Either completion of the contract with damages for delay, rescission with return of deposit and loss-of-bargain damages, or specific performance enforced by Supreme Court order.
Common issues
- Notice to complete given where time was already of the essence
- Purchaser readiness not documented, inviting counter-allegation
- Election between rescission and specific performance made equivocally
- Caveat lodged without supporting contractual interest
- Damages claim omits consequential delay costs
Run this workflow on a real matter
Quillio reviews the contract against the breach, drafts the notice to complete and election, and prepares the specific performance statement of claim. See /practice-areas/property-lawyers or start a free trial at /free-trial.
General guide only — not legal advice. Vendor default remedies are state-specific; confirm the applicable contract edition and state Act before action.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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