Neill v Hewens [1953] HCA 92; (1953) 89 CLR 1 (15 December 1953)

HIGH COURT OF AUSTRALIA

NEILL v. HEWENS [1953] HCA 92; (1953) 89 CLR 1

Contract - Executors and administrators

High Court of Australia
Dixon C.J.(1), Williams(1), Webb(1), Fullagar(1) and Taylor(1) JJ.

CATCHWORDS

Contract - Statute of Frauds - Note or memorandum - Signature - Sale of land - Executors as vendors - Contract signed by one only - Names of both typed at commencement - Sufficiency of signature - Conveyancing Acts 1919-1943 (N.S.W.) (No. 6 of 1919 - No. 29 of 1943), ss. 54A, 153.

Executors and administrators - Rights, powers and duties - Power to sell land - Contract signed by one of two executors - Direction in will to convert - Whether binding on estate - Enforceability of contract.

HEARING

Sydney, 1953, December 7, 8, 15. 15:12:1953
APPEAL from the Supreme Court of New South Wales.

DECISION

December 15.
THE COURT delivered the following written judgment:-
This is an appeal from a decree of Roper C.J. in Eq. dismissing a executors of the will and codicil of James Gurney deceased, who died on 15th June 1942. The defendant Hewens was appointed by the testator's will made on 7th July 1939 to be his executor and trustee. The will included a direction to him, described as trustee, to convert the whole of the estate into money and to divide the same among beneficiaries. The codicil appointed the defendant Elizabeth Catherine Bradford to be an additional executor (sic) to the will. The contract alleged by the plaintiffs-appellants is for the sale to them by the executors of a piece of land forming part of the estate called the Stony Creek block for the sum of 800 pounds, including an amount of 25 pounds for stock. The defendant Hewens alone defended the suit. He denied the contract and set up the Statute of Frauds. The defendant Mrs. Bradford entered a submitting appearance only and gave evidence in support of the plaintiffs' case. (at p10)

2. The material facts may be briefly stated. The Stony Creek block is situate about nine miles from Wauchope in New South Wales. It appears to have been known in the district that the executors would be likely to sell the land, although in fact there had been some dissension between them on the subject. The plaintiffs were desirous of buying the block and in April 1947 applied to the defendant Hewens. He expressed the view that Mrs. Bradford would not agree to sell but the plaintiffs decided to interview her. They appear to have informed her that Hewens had given his consent to a private sale to them. After some discussion she at length gave her concurrence and next day, namely 14th April 1947, she wrote to the solicitors who seem to have acted for the executors informing them that she would consent to a sale to the plaintiffs. Hewens and the plaintiffs then met at Wauchope but Hewens refused to agree to a sale. His solicitors wrote to the plaintiffs on 21st April 1947 saying that he was not agreeable to sell at the price offered and that the property must go up for auction. Shortly after this, however, the respondent Hewens departed from this decision. On 5th May 1947 he appears to have taken the plaintiffs as intending purchasers to see his solicitors. A contract was drawn up on that occasion and it is that document which is put in suit by the plaintiffs. After it had been explained to the plaintiffs in the presence of Hewens the latter said, according to one of the plaintiffs, that that would be all right. The plaintiffs signed the document and handed over a cheque for 100 pounds deposit. Hewens, however, refused to sign the document. (at p10)

3. What occurred is not very clearly stated by the plaintiffs, whose evidence seems to have been accepted by Roper C.J. in Eq. Both plaintiffs, E. A. Neill and A. S. E. Neill, gave evidence that the respondent Hewens said that he would let the lady sign first and have the lady's privilege. According to E. A. Neill, Hewens said that if he Hewens signed first she might not sign. The solicitor said he would give the plaintiffs the documents to take away for the purpose of obtaining Mrs. Bradford's signature. She was away from home at the time and it was arranged that Hewens should inform the plaintiffs when she returned. A form of application to the controller under the National Security (Economic Organization) Regulations was filled up at the interview and signed by the plaintiffs. This document they also took away for the purpose of obtaining Mrs. Bradford's signature to it. On 25th May Hewens wrote to the plaintiff E. A. Neill saying that he had not heard from him and wished to know "when we would be likely to be fixing up about Stony Creek. Mrs. Bradford has been home a fortnight . . . I would be pleased if you let me know what is doing". The plaintiffs then interviewed Mrs. Bradford again and obtained her signature to the documents. Hewens, however, then refused to sign them. The reasons he is said to have given were that the beneficiaries disapproved and that there were other offers. He persisted in refusing to go on with the transaction and eventually the plaintiffs brought the suit from which this appeal arises. (at p11)

4. The document signed by the plaintiffs and Mrs. Bradford as a contract consists of conditions and terms of sale followed by a part entitled "Contract for Sale". The conditions begin with the particulars of the land. These particulars are followed by printed clauses to which are appended some special conditions in typewriting. Then follow what are called "terms of sale". These provide only that upon the signing of the contract the purchaser shall pay into the hands of the agent a cheque for a deposit of 100 pounds and that the balance of purchase money shall be paid to the vendor on completion. At the end of the document under the heading "Contract for Sale" there is a statement that subject to and upon the preceding conditions and terms of sale the plaintiffs purchase the property as thereinbefore described for the sum of 775 pounds and the vendors sell the same. Next follows a date line which has not been filled in except as to the year. Then comes a note of the purchase money, the deposit and the balance. The document ends with "Signature of purchaser", followed by the signatures "E. A. Neill" and "A. Neill" and their occupation and address, and "Signature of vendor", followed by the signature "E. Bradford". The name of the vendor's solicitor is added. The only place in the document where the defendant Hewens' name is mentioned is at the commencement. It occurs in type in the heading of the document, which is as follows - "Conditions and Terms of Sale for the under-mentioned Property. Sold by Private Treaty. By Elizabeth Catherine Bradford and James Richard Hewens". (at p11)

5. Besides denying that this amounted to a concluded contract and relying upon the Statute of Frauds, the defendant Hewens set up a condition which he alleged had not been fulfilled. The condition was that the plaintiff should enter into a contract to sell part of the property the subject of sale to his brother. On the issue whether this condition had been made Roper C.J. in Eq. found against him. But his Honour held that the Statute of Frauds was not satisfied (s. 54A of the Conveyancing Acts 1919-1943 (N.S.W.)). For the plaintiffs it has been contended that the typed name of the defendant Hewens amounted to a sufficient signature by him. Roper C.J. in Eq. declined to accept this contention. His Honour said:- "The principles relied on are those which were applied in Schneider v. Norris [1814] EngR 211; (1814) 2 M & S 286 (105 ER 388) , Evans v. Hoare (1892) 1 QB 593 , and Leeman v. Stocks (1951) 1 Ch 941 and other cases. But I do not think that they apply to the facts in this case. Here the document, as written and printed on its face, provides for signature by both parties by the subscription of their names as signatures (Cf. Hubert v. Treherne [1842] EngR 214; (1842) 3 Man & G 743 (133 ER 1338) ) and the evidence shows that all parties were intended to complete the document by signing in that way. The document did not come into being as a perfect instrument so as to permit of the insertion of the vendors' names in typewriting at the commencement of the conditions of sale being regarded as a signature for the purposes of satisfying s. 54A. This case, because of the evidence, is stronger than was Hubert v. Treherne [1842] EngR 214; (1842) 3 Man & G 743 (133 ER 1338) against holding that the document is signed by the vendor who has not subscribed it" (1952) 53 SR (NSW) 113, at p 117; 70 WN 11, at pp 12-13 . (at p12)

6. Another contention made for the plaintiffs which the learned judge overruled was that the contract bound the estate, notwithstanding that it had not been executed by both of the executors or trustees. Section 153 (4) of the Conveyancing Acts 1919-1943 makes it necessary that the statutory power of sale conferred upon executors in the case of realty should be exercised by both of them. It was sought, however, on behalf of the plaintiffs to treat the power of sale given in the will as overcoming this necessity. But clearly whatever power of sale is conferred upon them by the will must be exercised by both of them jointly. The view his Honour took on this point seems indisputably to be right. There is no room for the view that because at one stage both appeared to be content with the proposed sale, one of them alone could carry it into effect by a contract executed only by that one. (at p12)

7. At the threshold of this case lies the question whether any contract was in fact made. From the facts that have been already stated it seems to be perfectly clear that neither party entered into any anterior contract containing the terms and conditions expressed in the written contract. There was certainly no contract of which that document was intended only to be a subsequent note or memorandum. Neither side intended to contract otherwise than by means of the very instrument. It is equally clear that when the written contract was drawn up by the solicitors and explained to the parties it was intended as an instrument to be converted into a contract by the execution by all parties thereto. (at p13)

8. When the defendant Hewens expressed his unwillingness to sign before Mrs. Bradford it was for the purpose of withholding or deferring his assent to the instrument as a contract and ensuring that he was not bound until she had first executed the document. When the plaintiffs-appellants carried the instrument away from the solicitor's office, although all parties may have supposed that there was no doubt about the transaction going through, unless indeed it was because Mrs. Bradford's agreeing remained in doubt, yet none of them could have supposed that then and there a contract had been concluded binding the defendant Hewens. When Mrs. Bradford executed the contract the presumption is that she did not intend to bind herself unless her co-executor and co-trustee also executed the instrument, his signature being regarded by all parties as essential. (at p13)

9. On the facts, therefore, the plaintiffs must fail on the simple ground that they are unable to establish the actual making by the defendants of the contract on which they sue. This view of the case answers the argument, if any further answer was needed, based upon the supposition that one of the two executors might sell. As it denies the making of the contract, it leaves no room for the question whether the Statute of Frauds has been satisfied. But incidentally it provides an answer to the argument that the typescript name of the respondent Hewens amounted to his signature within the meaning ascribed to the Statute of Frauds. For it is clear that when in the course of the preparation of the document Hewens' name was typed in by the solicitor's clerk it could not at that point of time have operated as an equivalent of his signature. If in the circumstances it could ever become his "signature" it could only be by his subsequent recognition and to put it at its lowest it would be necessary for Hewens to recognize the instrument containing his name as the final and complete expression of a contract he then or there entered into as a party. It would be impossible to push further than this the doctrine of such cases as Knight v. Crockford (1794) 1 Esp 190 (170 ER 324) ; Saunderson v. Jackson [1800] EngR 227; (1800) 2 Bos & Pul 238 (126 ER 1257) ; Schneider v. Norris [1814] EngR 211; (1814) 2 M & S 286 (105 ER 388) ; Johnson v. Dodgson [1837] EngR 142; (1837) 2 M & W 653 (150 ER 918) ; Durrell v. Evans [1862] EngR 700; (1862) 1 H & C 174 (158 ER 848) ; Evans v. Hoare (1892) 1 QB 593 ; Cohen v. Roche (1927) 1 KB 169 and Leeman v. Stocks (1951) Ch 941 . Cf. Hubert v. Treherne [1842] EngR 214; (1842) 3 Man & G 743 (133 ER 1338) . (at p14)

10. For these reasons the appeal should be dismissed with costs. (at p14)

ORDER

Appeal dismissed with costs.