Willmott & Anor v McLeay & Anor [2013] QCA 84

The Queensland Court of Appeal (Appeal Court) recently found a vendor under a Contract of Sale has a right to claim the deposit as a debt in addition to the rights under clause 9.4 (rights on purchaser default) of the Contract where the purchaser failed to pay the balance deposit and failed to complete the Contract.

The purchaser argued that the recovery of the deposit (in addition to the remedies available under clause 9.4) would constitute an “unfair windfall” to the vendor. The Appeal Court held the recovery of the deposit did not constitute an unfair windfall rather it demonstrated the dual character of the deposit as:

  1. art payment of the purchase price; and
  2. “a guarantee that the purchaser means business” (Bot v Ristevski [1981] VR 120).