The Case

In this case, the vendor’s solicitors issued a Notice to Complete. When compliance failed, the borrower was issued a letter of termination. The issue was that the sale contract required 14 days’ notice after the Notice to Complete was served before the contract could be terminated.

A mistake was made by waiting only 13 days before sending the termination letter.

The Court found that this small mistake was fatal, and therefore the Notice to Complete was invalid. Failing to comply with the notice had the very serious consequence of enabling the vendor the terminate the contract and keep the deposit.

This had several consequences to the vendor:

1. Foremost, the purported termination failed;

2. The vendor lost the ability to retain deposit that would have been forfeited to the vendor should proper termination process went ahead;

3. Prolonged litigation followed; and

4. Refinancing and recovery arrangements became increasingly complicated.

The matter went on appeal, but not on the validity of the Notice to Complete. 

A central issue in Tekin v Stratford [2026] NSWCA 54 was whether there was a claim against the solicitor who had got the Notice to Complete wrong, and if so, whether the vendor had suffered any loss as a result. 

The vendor claimed it had lost the deposit and would have been entitled to keep it if the notice had not been one day short.  It also claimed damages for the lost opportunity of selling the property at a better price.

Findings

The Court had no difficulty finding that the solicitor’s were liable to pay the vendor the amount of the lost deposit. 

The damages claim was, however, was rejected for reasons that are worth noting.

In loss of opportunity cases, the plaintiff must convince the court with hard evidence that a real, and not negligible opportunity was lost.  Speculation will not be enough.

The value of the lost opportunity must then be established – once again, by real evidence. This often involves evaluating the probabilities and possibilities of different outcomes.

The Court held there was insufficient causal connection between the invalid termination of the contract and the subsequent re-sale of the property more than a year later to establish that the solicitors were responsible for any further loss.

Key Takeaways

These two cases have two learnings for lenders.

1. Notices to Complete and termination notices in property transactions must strictly comply with contractual and legal requirements.  Seemingly technical defects can materially impair enforcement by:

   • delaying recoveries;

   • compromising sale processes;

   • increase litigation exposure; and

   • reduce recovery value.

   
   

2. If there is a procedural error leading to a possible damages claim, the innocent vendor must ensure that it can establish that the problem caused the loss, and the extent of any loss.

DISCLAIMER: This article is current as at August 2026. It is general in nature and does not constitute legal advice. Specific advice should be obtained for your particular circumstances.