Public Trustee (NSW) v Gavel [1927] HCA 43; (1927) 40 CLR 169 (9 November 1927)

HIGH COURT OF AUSTRALIA

The Public Trustee of New South Wales Defendant, Appellant; and Gavel Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

9 November 1927

Knox C.J., Isaacs, Gavan Duffy and Starke JJ.

Maughan K.C. (with him David Wilson), for the appellant.

Browne K.C. (with him Dudley Williams), for the respondent.

The judgment of the Court (which was delivered by Knox C.J.) was as follows:—

Knox C.J.,

Isaacs, Gavan Duffy and Starke JJ.

In this case the appellant and the respondent entered into a contract for the sale by the appellant to the respondent of certain conditionally purchased and conditionally leased land, and the sale was by clause 6 of the contract expressed to be "subject to the consent of the Minister for Lands being obtained at the purchaser's expense to the proposed transfer." That clause went on to provide: "If for any reason such consent shall be refused this contract shall become void." In the event of the Minister's consent being obtained the contract would of course remain in full force. What happened was this:—The respondent sent to the appellant a copy of the contract for execution and a form of application for the Minister's consent to a transfer to the respondent. Without going into details, that application was completed by the appellant, who was the proposed transferor, and was returned to the solicitor for the respondent, who lodged it at the Lands Office, and all necessary steps were taken to obtain the consent of the Minister to that particular proposed transfer. The application having gone to the Minister, he did not make up his mind as to whether he would consent or refuse to consent, but he referred the matter to the Land Board for inquiry and report. A few days before the matter was to come on for hearing before the Land Board, the respondent agreed to sell to one Walker all her interest in the land under the contract. She then intimated to the Minister her desire to withdraw the application for the Minister's consent to a transfer to her. The withdrawal was assented to by the Minister, and thereupon the whole of those proceedings became abortive. The respondent insisted and now insists that, notwithstanding what had happened, the appellant was bound to make another application to the Minister for his consent to another transfer, namely, a transfer to Walker, and to transfer the land to Walker if such consent were given. On the other hand the appellant says that he has performed all that he bound himself by the contract to perform, and that the fact that the respondent has not got a transfer of the land is due to her own default and not to the default of the defendant. In other words, the appellant says that the respondent has failed to show that she was ready and willing to perform her part of the contract. If the obligation undertaken by the appellant was to obtain the consent of the Minister to a transfer to the respondent individually, and not to her nominee, it is clear that the appellant has done all that he was bound to do and that the failure to complete the transaction is not due to any default on his part but is due to the action of the respondent in withdrawing the application for consent. But if, on the other hand, the original obligation assumed by the appellant was to apply for consent to a transfer to the respondent or her nominee, the respondent required the appellant to apply for consent to a transfer to her and that application, having been made, was rendered abortive by her conduct. In either view it seems to us that the appellant has done all that he has contracted to do. If his contract was to apply for the consent of the Minister to a transfer to the respondent individually, he has done it and the application was rendered abortive not by his fault but by the fault of the respondent. If, on the other hand, his duty was in the first instance to apply for consent to a transfer either to the respondent or to her nominee at her election, he has been asked by her to apply for consent to a transfer to her and he has done so. In that view he has performed his duty under the contract. In either case performance of the contract has been prevented not by the default of the appellant but by the default of the respondent. She has shown that she was not ready and willing to perform the contract. That being so, we think that the appeal should be allowed and the suit dismissed with costs, including the costs of this appeal. The appellant counterclaimed for possession and mesne profits. By consent of the parties the order on the counterclaim will be as follows:—Respondent to deliver up possession to the appellant on 7th December 1927. Respondent to pay to appellant interest at 6 per cent per annum from 6th February 1926 to 7th December 1927 on £4,845.

Order accordingly.

Solicitor for the appellant, F. Lynne Rolin.

Solicitor for the respondent, J. H. R. Rhodes, Condobolin, by F. Marsden.