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High Court of Australia |
GOODWIN v TEMPLE [1956] HCA 68; (1994) 180 CLR 68
Vendor and Purchaser
HIGH COURT OF AUSTRALIA
DIXON CJ(1), MCTIERNAN(1), WEBB(2), KITTO(1) AND TAYLOR(3) JJ
Vendor and Purchaser - Sale of land - Option to purchase - Cane farm with production assignment - Price payable on exercise of option and consents of authorities - Written agreement to embody "all usual conditions" - Purported exercise of option - Entry into possession Application of part of proceeds of crop to payment of price - Payment in full - Failure to obtain consents - Failure to execute agreement - Failure to execute transfer - Specific performance.
DECISION
DIXON CJ, McTIERNAN J AND KITTO J This difficult case concerns an attempt to deal contractually with a sugar cane farm. The land is situated at Chelona near Mackay and is, of course, subject to The Regulation of Sugar Cane Prices Acts 1915-1951 (Q.). It consists of 168 acres but its "mill assignment" was eighty acres gross and sixty acres net, and its "farm peak" was only forty-five tons of sugar. A Local Sugar Cane Prices Board set up by those Acts fixes the "farm peak" of a sugar cane farm under s. 6(2), which provides that in each year the Local Board shall determine the maximum quantity of cane which may be sold and delivered from the lands assigned to the mill for which the Board is constituted and enables it to do so on the basis of the tonnage of cane to be harvested or of sugar to be manufactured therefrom. It is under the(27) [1941] HCA 35; (1941) 65 CLR 221, at pp. 243-244.
(28) [1952] HCA 74; (1952) 87 CLR 267, at pp. 280, 286.latter power that the "farm peak" of sugar is prescribed. There is no prohibition against selling lands with a mill assignment but s. 5(2A) provides that an assignment of lands where the owner is the grower shall remain until the owner sells or leases the assigned land and then it shall lapse or be rescinded unless the Central Sugar Cane Prices Board has approved in writing of the terms of the sale or lease. As might be expected, this provision dominates any proposed dealing in lands having a mill assignment. In the present case the lands were owned for an estate in fee simple by the respondent Temple who was anxious to sell out and was prepared to do so for a price of pounds 3,000 payable by instalments. The price, however, seemed disproportionate to the low "farm peak" and it was anticipated that there might be some difficulty in obtaining the Board's approval. The appellant Goodwin was ready to buy at the price but his resources would not enable him to pay the purchase money except out of revenue from the farm. The land agent through whom the parties were brought together discussed the situation with them and turned the possible form of the transaction this way and that. He favoured an option but he would not undertake to draw the contract himself and he referred them to a solicitor. His own idea was that payments out of the cane crop of one or two seasons would reduce the amount of the purchase money to a balance which, if expressed as the actual price, would pass the Board. But probably the parties did not understand this. For the use of the solicitor the agent prepared some particulars of the proposed sale stating, among other things, that the purchaser was to take over immediately and was to have an option during which the vendor was to endeavour to have the farm peak increased, failing which the option was to be extended for twelve months.
2. All this took place as long ago as the end of 1942. Armed with the
particulars, Temple, Goodwin and the agent repaired to a solicitor
on 31
December 1942, who heard the story and discussed the problem, if not with the
parties, who appear to have obtained a very imperfect
understanding of the
matter, at all events with the agent. lie then proceeded to draw up a
contract, while they waited to execute
the document. It took the form of a
communication by Temple to Goodwin granting him an option of purchase and in
the event it was
signed only by Temple.
3. It is not an easy document to interpret in all respects but without
entering upon a discussion of its text we shall state the
terms that are
material to this case as we construe them. The option was made exercisable on
or before 30 July 1943. The consideration
for the grant of the option was
pounds 150 but in the event of the option being exercised that sum was to be
applied as a deposit
forming part of the purchase money, the amount of which
was pounds 3,000. This was the price of the land and of certain chattels
pertaining to it which were enumerated. The liability for the purchase money
arose on (1) the exercise of the option together with
(2) the grant of such of
certain consents as might then be necessary. The consents referred to were
those of the Federal Treasurer
(sc. under the National Security (Economic
Organization) Regulations Pt III), the Central Sugar Cane Prices Board and the
manpower
authorities. It was a condition that Goodwin should enter into a
written agreement of purchase on the exercise of the option "embodying
all
usual conditions, including" payment of rates and insurance, the cultivation
of the land so as to maintain the farm peak undiminished
and payment of costs
and stamp duty. A further instalment of pounds 150 on account of the purchase
money was to be paid on 31 December
1943, and the balance with interest at 2
1/2 per cent per annum by instalments on each mill pay day equal to 22 1/2 per
cent of the
gross proceeds of the sugar cane harvested from the land. It was a
condition that Temple on his side should apply to the Board for
an increase of
the farm peak. If the farm peak was not raised at least to 400 tons
(presumably of cane) before the option expired
it was to be extended for
twelve months, i.e. until 31 December 1944, and Temple was to make a renewed
application to the Board.
Goodwin was to go into possession at once and
cultivate the land. If he did not exercise the option he was to receive as
compensation
for his work 77 1/2 per cent of the proceeds of the sugar cane
and Temple was to retain 22 1/2 per cent thereof. If Goodwin did exercise
the
option Temple was to apply the 22 1/2 per cent in part payment of the purchase
money.
4. We are unable to agree in the view that the condition requiring Goodwin to
enter into a written contract should be interpreted
as meaning that Goodwin
must do so, not on the exercise of the option, but at once. This
interpretation was adopted in the Full Court
of the Supreme Court but, with
respect to their Honours, we think that to interpret it as applying when the
option is exercised accords
more with the sequence of the document and with
substantial considerations arising out of its evident practical purpose. For
it seems
evident that it was intended to regulate their relation as vendor and
purchaser, when that relation was established.
5. The parties met again at the agent's office on 5 January 1943, when
Goodwin announced that his wife and he had discussed the
transaction and had
decided that they would buy the property. He paid down the sum of pounds 150,
which was described as a deposit
on the farm in the receipt he obtained from
the agent. He went into possession at once, though Temple remained on the farm
for a
time and afterwards returned for a few weeks while he wound up his
affairs in the locality. He left finally in August 1943. An order
was given to
the mill authorities under which the stipulated proportions of the net
proceeds of the cane delivered from the farm
were paid respectively to Temple
and to Goodwin. This did not, however, apply to the crop of 1943. It was
arranged that in respect
of that crop Goodwin should receive only pounds 1 a
ton of cane. Temple sold some additional articles to Goodwin on credit and
gave
him some financial assistance. The terms of this accommodation included,
apparently, first the reduction to pounds 1 a ton of the
amount to be received
by Goodwin for that year and second the opening of a loan account which was to
be paid after Me discharge of
the purchase money; it would then be paid by
applying 22 1/2 per cent of the net proceeds of the cane crops which Temple
would continue
to receive until all indebtedness was cleared off. Temple, who
had expressed his desire to have no more cane farming, left the locality.
Such
business affairs as he had at Mackay he entrusted to the agent aided by a
taxation accountant. Goodwin remained in possession
of the farm and cultivated
and improved it in various ways. An application was made to the Local Sugar
Cane Prices Board but that
body refused to increase the "farm peak", and
nothing was done about the matter in the following year. It is quite plain,
however,
that both parties conducted themselves on the footing that Goodwin
had become the purchaser of the property.
6. By the end of 1946 the balance of purchase money had been reduced to
somewhat less than pounds 2,200. In the course of that year
Goodwin began
pressing to have the sale "put through" or "finalized", as it was expressed,
which no doubt meant that it should be
made the subject of the Board's
approval and should be expressed in some more definite legal form. This was
communicated by the agent
to Temple, who replied in somewhat indecisive terms
that it would be better to let it stand till about the end of the year.
Goodwin
continued to press the question and in April 1947, Temple wrote that
he would come to Mackay, that all was to be in readiness and
that he would
"push it through". When he arrived they saw the solicitor who, however, raised
a new obstacle. It appears that at the
end of 1946 The War Service (Sugar
Industry) Land Settlement Act 1946 (Q.) came into force. That Act contained
provisions designed
to ensure that no land with a mill assignment should be
sold unless it had been advertised and an opportunity to purchase it had
first
been given to members of the Forces with war service. The Act had no
application to any transaction that had already been entered
upon, but
unfortunately the solicitor gave the parties the mistaken advice that while
the provision remained in force it afforded
an insurmountable obstacle to the
completion of the sale of the farm. He believed that it was a temporary
measure, however, and pending
its going out of force he told the parties that
they must simply go on as they were doing. From this time on Goodwin
repeatedly returned
to the question of completing the transaction.
7. The agent and others put forward more than one device for meeting possible
objections by the Central Board. Temple's attitude
until a late stage was
consistent only with Goodwin's being a purchaser. He asked that Goodwin should
pay the insurance premiums.
When Goodwin requested a temporary concession in
the proportion paid to him from the mill Temple sent word that he wanted the
place
paid off. In June 1950, he proposed that it should be "all cleaned up"
and that he should visit Mackay for the purpose. At that time
the purchase
money had been paid off in full and by 2 September 1950, the "loan account"
had also been discharged and Goodwin was
in credit with Temple. The order to
the mill still stood however and Temple continued to receive 22 1/2 per cent
of the proceeds
of the cane. For 1952 there was a readjustment of farm peaks
and that of the land in question was raised to 121 tons. But late in
1950
Temple's attitude began to change. That is disclosed by a letter to the agent,
from which it is clear enough that he contemplated
taking advantage of the
supposed obstacle arising horn the provisions of The War Service (Sugar
Industry) Land Settlement Act 1946.
In March 1951, he offered Goodwin a three
years' lease which was refused. In November 1952, he demanded possession of
the land from
Goodwin. Goodwin's solicitors tendered to Temple a transfer of
the land for execution and then sued for specific performance.
8. The suit was heard by O'Hagan J. His Honour made some important findings
of fact in favour of the plaintiff Goodwin but decided
that the option could
have no binding effect because one of its terms made it a condition precedent
to an enforceable sale that a
further written contract should be entered into
and until this was done there could be no contract.
9. It may be remarked that if, for the reason given by the learned judge, no
contract grew out of the document, a consequence would
be that ample room
existed for the parties to constitute a contract of their own by words and
conduct. There are many circumstances
in the case which, on that footing,
would support the inference that this is what they did. The terms of the
contract to be inferred
were simple enough and part performance seems to
remove the difficulty of a want of writing. But we cannot agree with the view
that
the clause in question robbed the option of all contractual force. It
seems to us to demand no more than the expression of the transaction,
when the
option is exercised, in a formal shape comprising terms which are described on
the footing that they are known and certain.
No evidence was called to show
that there were no "usual conditions" certainly ascertainable, and the burden
of calling evidence
to invalidate what on its face appears to be a concluded
contract lay on the defendant, Temple.
10. Apart from the stipulations expressly mentioned as to rates, insurance
premiums and the cultivation of the land, it may reasonably
be supposed that
the usual conditions contemplated are those relating to production of title,
requisitions, mistakes and misdescriptions,
rescission for default,
apportionment of outgoings, and completion by transfer, all familiar subjects
for which it may well be there
is a form commonly adopted. If it be otherwise
and the reference in the option agreement cannot be applied that is a matter
of proof,
Had the defendant Temple offered such proof, the question would
remain whether the result was that in such a contract as this the
uncertainty
produced a general invalidity. But, as it is, that need not be considered.
Cases like Niesmann v. Collingridge (29) are
doubtless not common but this
option agreement appears to provide an example.
11. In the Full Court the judgment of O'Hagan J. was affirmed but not on the
ground that there was no contract. Hanger J., who delivered
the judgment of
the Court, agreed that there was a contract creating legal relations between
Temple and Goodwin but held that before
Goodwin could acquire an option under
that contract, it had been incumbent upon him to enter into a further formal
contract. We have
already stated that we are unable to adopt this view.
12. The case presents to us a very different aspect. Doubtless the option
agreement contained many conditions and doubtless the
option to purchase was
not exercised by Goodwin in a formal document. But you find that the parties
went on under the agreement for
years treating one another as vendor and
purchaser and that Temple received and retains the whole of his purchase
money. O'Hagan
J. found definitely, in terms that need not be repeated, that,
by the conversation in the agent's office, Goodwin exercised the option
on 5
January 1943, and that Temple so understood him. There is evidence to support
this finding but even if it were not possible
to fix on the precise occasion
when it was done the inference is irresistible that the parties agreed to
treat the conditional contract
constituted by the option as absolute and did
so because they knew that Goodwin had elected unconditionally to become the
purchaser.
13. When a vendor sells land the consideration which the contract secures for
him is payment of the purchase money for which he
stipulated. It is indeed a
legal incongruity for the vendor to receive and retain the whole of the
purchase money and then complain
that conditions of the contract operating
pending completion have not been performed and on that ground claim to be
relieved of his
obligation to transfer the land. One can see in this
incongruity the basal reason why O'Hagan J. said that the defendant had no
merits
and Hanger J. spoke of his undoubted fraud. Temple, however, coupled
his change of attitude with assertions that Goodwin held of
him as a share
farmer, and this view of the matter he maintained. It is on that ground
doubtless that he would defend the retention
of the payments he received from
the mill representing 22 1/2 per cent of the proceeds of the crops. It is a
view, of the matter
which, though ascribed by Temple to the impossibility of
treating Goodwin as anything but a share farmer on the assumption they all
made that servicemen must have priority on a sale or letting of the land, yet
obviously has its source in the provision of the option
agreement that the
moneys received by Goodwin from the mill in respect of the cane crops should,
in the event of his not exercising
the option, be compensation for his work in
planting and cultivating the land. This provision is now relied upon on
Temple's behalf
as explaining the footing on which Goodwin held and cultivated
the land so long and on which they received their respective proportions
of
the proceeds of the cane crops. But it is quite plain that the provision
applies only during the currency of the option. It could
have no further
effect once the option was exercised and it could have no further effect once
the option ran out unexercised. The
inference that the relation between the
parties was that of vendor and purchaser cannot be intercepted that way.
Indeed the inference
is unavoidable that for some seven years both regarded
themselves as in that relation, though both thought that the completion of
the
transaction was impeded by the need of obtaining the Central Board's approval
and later of waiting for the expiry of the priority
which, as they believed,
servicemen possessed. In other words the common basis upon which they
proceeded was that the option had
been exercised and on andat basis Temple
received payment of the purchase money and interest thereon in full.
14. When the conditions are examined upon which he relies in answer to the
claim that he must in these circumstances transfer the
land for which he has
been paid we think the fact appears that in these circumstances he is in no
position to re, upon them. The
conditions as to the consents of the Federal
Treasurer and of the manpower authorities can at once be put aide. The consent
of the
latter never was necessary and the consent of the former ceased to be
necessary as long ago as 20 September 1948. In any case the
absence of such a
consent would not have affected the validity of the contract. The approval co
consent of the Central Sugar Cane
Prices Board formed the subject of a
condition in the fulfilment of which Goodwin was primarily interested. But
doubtless, while
be primary purpose of We condition was to safeguard Goodwin
from an obligation which, without the condition, the contract might have
placed upon him of paying for the land, although it had lost its mill
assignment, Temple must also be regarded as possessing an interest
in the
fulfilment of the condition while the purchase money remained unpaid. The
option agreement actually expresses the condition
as one on the fulfilment of
which the purchase money becomes payable. Clearly enough Goodwin waived it as
a condition precedent in
that sense and went on as if he owned the land,
submitting to the payment to Temple of 22 1/2 per cent of the proceeds of the
cane
as instalments of purchase money. This does not mean that in so far as
the agreement imposed an obligation upon Temple to obtain,
or to give all
reasonable assistance with a view to obtaining, the consent of the Central
Board that obligation ceased. It means
only that Goodwin could no longer take
advantage of the term as a condition precedent to his obligation to pay the
instalments of
purchase money. Whether any and what steps were open to him to
revive the term as a condition failure in the fulfilment of which
within a
reasonable time would entitle him to rescind is a question which does not
arise and need not be considered. But once Temple
chose to go on receiving the
purchase money as such on the footing that Goodwin had become a purchaser, the
option being exercised,
he then stood in the same position. Clearly enough
once he had received the purchase money in full, no steps could be any longer
open to him, if ever they were, to make non-fulfilment of the term a ground of
rescission on his part. In any event no such course
was adopted by him.
15. In the same way he can no longer insist on the condition that Goodwin
must enter into a written agreement of sale embodying
all usual conditions.
The purpose of that condition was to govern the relations of the parties
pending completion. He chose to go
on without it right up to the point of
completion, as did Goodwin. He cannot now treat the term as an essential
condition, non-fulfilment
of which relieves him of his obligation to transfer
the land though he retains the purchase money.
16. To the foregoing view of the case it is objected on the part of Temple
that Goodwin's pleadings allege rather performance of
or readiness and
willingness to perform all conditions on his part and breach by Temple. To
this there are two answers. In the first
place We statement of claim seems to
be a narrative of fact rather than a pleading giving any particular legal
complexion to the
plaintiffs case and in the second place, as appears from the
judgment of Hanger J., when the plaintiff's counsel relied upon waiver
no such
objection was taken for the defendant.
17. In our opinion the appeal should be allowed and a decree for specific
performance should be made.
WEBB J. This is an appeal from a judgment of the Full Court of Queensland dismissing an appeal from a judgment of O'Hagan J. given for the defendant, the respondent Temple, in an action by the plaintiff, the appellant Goodwin, for specific performance of a contract for the sale of a sugar-cane farm at Chelona near Mackay in North Queensland, comprising about 168 acres with an assignment of eighty to sixty acres and a farm peak of forty-five tons of sugar under The Regulation of Sugar Cane Prices Acts 1915-1941 (Q).
2. Some time in 1942 Temple employed one Dunworth, who carried on business at
Mackay as a real estate and general commission agent
to secure a buyer for
this farm. Dunworth advertised the property as for sale in a local newspaper
and in response to this advertisement
Goodwin called on Dunworth on 30
December 1942, and was introduced by him to Temple at the farm, which Goodwin
then inspected and
found to be very much run-down and the cane then growing on
the farm to be very backward. Apparently Temple was in poor health and
this
restricted his farming activities. Goodwin asked Temple what the price was and
was told pounds 3,000 for the farm stock and
plant. Goodwin said he had only
pounds 225 and Temple replied that he would be satisfied with a pounds 150
deposit and a further
pounds 150 to be paid out of the proceeds of the cane
then growing on the farm, when harvested. However Temple also said that he
was
doubtful whether the Central Sugar Cane Prices Board would approve of the sale
at pounds 3,000 as it was too high, having regard
to the low farm peak, which,
as already stated, was forty-five tons of sugar, or about 300 tons of cane.
Here it should be noted
that by s.5(2A) of The Regulation of Sugar Cane Prices
Acts 1915-1941, it was provided inter alia that ".. . where the owner of
assigned
land is also the cane-grower the assignment ... shall remain until
such time as the owner sells . . . his assigned land whereupon
such assignment
shall lapse or be rescinded unless the Central Board has approved in writing
of the terms of sale ... Any such approval
shall not be refused ... unless the
Central Board is satisfied that the price and/or the terms and/or conditions
of sale are unfair
and unreasonable ..." (The emphasis is mine.)
3. Temple said, however, that he intended applying for an increased farm
peak, and Dunworth said that, if properly worked, the farm
would produce 1,000
tons of cane and then would be worth pounds 3,000.
4. The parties agreed to meet the following day, 31 December 1942, in
Dunworth's office and did so; but after some discussion they
agreed to see
Temple's solicitor who, when he had heard what the parties and Dunworth had to
say, drew up in his own handwriting
the following document, from which I omit
words not material for the purposes of my reasoning.
"Cecil Victor Goodwin, Mackay. Sir,you to me the receipt of which I herewith acknowledge, 1, James Mather Temple of Chelona, Farmer, hereby give you an irrevocable and firm option to purchase from me free from all encumbrances on or before the thirtieth day of July, 1943, those pieces of freehold land ... namely ... for the sum of three thousand pounds payable by a deposit of one hundred and fifty pounds payable on exercise of option and the consents of the Federal Treasurer, Central Sugar Cane Prices Board and Man Power Authorities (or such of them as may be necessary) ... a further sum of one hundred and fifty pounds on or before the thirtyfirst day of December, 1943, and the balance together with interest calculated from the date of the last necessary consent ... by instalments ... equal to twentytwo and one half per centum of the gross proceeds of all sugar cane harvested ... subject to your entering into a written agreement embodying all usual conditions ... provided that I shall undertake to apply to the Central Sugar Cane Prices Board for an increased farm peak and unless such peak is raised to at least 400 tons prior to the expiration of this option ... then to extend the option for a further year, and to make a renewed application in 1944 ... you to be at liberty from the date hereof to enter on the said land and cultivate the sugar cane thereon at your own expense ... receiving as compensation therefor (in the event of the option not being exercised) the proceeds of all sugar cane supplied by you ... to a mill ... less 22 1/2 per centum which I shall retain for my own use, but all moneys so received by me shall be applied (after allowing a sum equal to interest on the said price during your occupation) in part payment of the said purchase price in the event of the option ... being exercised, Provided that the consideration paid Kr the option shall be applied on payment of the deposit.
In consideration of the sum of One hundred and Fifty pounds this day paid by
Yours faithfully,
J. M. Temple."
5. This document was signed by Temple but not by Goodwin. There was in fact
no payment for the option or in pursuance of it until
5 January 1943, and then
under the circumstances hereinafter appearing.
6. As the option was to be extended until the farm peak was raised it follows
that it was not to be exercised before the peak was
raised. Further, as the
undertaking to apply for the peak was not a present but a future undertaking,
as appears from the phrase
"I shall undertake", it is natural to conclude that
the undertaking was not to precede the agreement in writing embodying usual
terms
but, on the contrary, was to be part of that agreement, or at all events
a consideration for Goodwin having entered into such agreement
Then the option
was not to be exercised until this written agreement had been entered into.
However, looking at the option alone,
without regard to s. 5(2A) or the
intention of the parties in view of that section, there is no reason why the
"consents" should
be obtained before the exercise of the option.
7. But there was nothing to prevent the parties from departing from the terms
of the option without departing from the option itself,
and O'Hagan J. found
that they did depart from those terms, to the extent that he found that on 5
January 1943, Goodwin told Temple
in Dunworth's office that he had decided
then and there to exercise the option (although the written agreement
embodying usual terms
had not been entered into and no application had been
made for an increased peak and no "consent" obtained) and that Goodwin
thereupon
paid the sum of pounds 150 to Temple and received in return a
receipt for "a deposit on Temple's farm" and was then given possession
of the
farm by Temple.
8. I think we must accept this finding that the payment of pounds 150 was not
made for the option, but was made as a step in the
exercise of the option then
decided upon, and that Temple accepted it as such. But it does not follow that
it brought about a concluded
contract. That would have caused the assignment
to lapse, as s.5(2A) provides that the Central Board's approval of the terms
of sale
is to precede the sale. It would be unreasonable to find that, as at 5
January 1943, which, in view of the finding of O'Hagan J.,
was the crucial
date for ascertaining the contractual intentions of the parties, they were ad
idem to the extent that Goodwin was
prepared to purchase the farm without the
assignment, and that Temple was prepared to sell it without the assignment,
seeing that
it was essential to Temple that the assignment should continue, as
he depended on that, as at the crucial date, if the purchase money
was to be
secured, and in fact all but pounds 150 was then outstanding. Goodwin appears
to have had no money as he had to borrow
from Temple to pay even wages, as
well as for other purposes. It could have happened that, as time went on and
the aggregate of the
amounts paid by the mill to Goodwin and Temple reached
high figures, both would have been prepared to risk the loss of the
assignment,
but not at the same point of time, except by coincidence. But, as
already stated, the date for ascertaining their contractual intentions
was 5
January 1943, when the option was exercised.
9. I conclude then that the payment and acceptance of this pounds 150 did not
amount to an exercise of the option to the extent
of dispensing with the
agreement and undertaking and the "consent" of the Central Board. It is common
ground that the other consents
were not necessary. On the contrary, whatever
was done on 5 January 1943, was "subject to" the agreement embodying usual
terms being
entered into, and it was never entered into. The Full Court took
the view that the entering into this agreement was intended by the
option to
be a unilateral act, an undertaking by Goodwin, and that it was waived by
Temple by his subsequent conduct, and could be
waived by him, as it was solely
for Temple's benefit. But the option appears to treat "agreement" and
"undertaking" as different
things; it uses the expressions in juxtaposition.
In these circumstances, giving "agreement" its usual meaning, and in the
absence
of any indication in the option that a different meaning was intended,
I think the written agreement embodying usual terms was one
which both Goodwin
and Temple were required to enter into, and that it could not be said to be
for the sole benefit of either party,
and so could not be waived by either
(30).
10. Then, subject to what follows, there was in my opinion no concluded
contract that could be specifically enforced, as the expression
"subject to"
in the option meant that the sale was dependent upon such an agreement being
entered into (31).
11. However, all the moneys due to Temple have long since been paid to him,
so that he cannot now be said to have any interest in
the execution of a
further agreement. In those circumstances can it rightly be said that there is
still no concluded agreement for
sale of
(30) Lloyd v. Nowell, (1895) 2 Ch 744.(31) See Winn v. Bull (1877), 7 Ch D 29, at p 32; Von Hatzenfeldt-Wildenburg v. Alexander, (1912) 1 Ch 284; Masters v. Cameron [1954] HCA 72; (1954), 91 CLR 353.
12. But the effect of finding that a sale had been concluded absolutely would
be to hold that the cane assignment has been lost,
although Goodwin alone
would be prejudiced by that; the sale would still be valid, and Temple has
received all that he was entitled
to receive.
13. However if, as the Full Court held, rightly I think, the Board's approval
was not a condition precedent, it may still be sought
and secured. See as to
this Butts v. O'Dwyer (32). This case is a fortiori as the agreement here
contains express provision for seeking
the Board's approval; whereas the
agreement in Butts v. O'Dwyer was silent on the point of securing the
Minister's approval of the
transfer of the Crown lands there dealt with. But
whatever the position, Temple has no further interest; he has only the duty to
co-operate with Goodwin in making the required application for the Board's
approval. As to this, we cannot anticipate, or direct
or control the Board's
action. However it is possible that the fact that the land had a eighty to
sixty acre assignment, although
a low farm peak, because apparently of
Temple's inability to work owing to illness, may prove to be a consideration,
more particularly
if Temple was not able to secure the necessary farm labour
during the war years. It is true that the parties did not seem to think
that
the Board's approval could be obtained for a price of pounds 3,000. But these
parties were not always soundly advised, even
in major matters, as appears
from the fact that they thought that, under State legislation having in fact
no application to this
transaction, returned soldiers had preference in the
purchase of this farm.
14. No question arises under the Statute of Frauds, as the agreement for sale
arises from the exercise by Goodwin of the option
given and signed by Temple,
and that option contains the whole of the terms and conditions of sale. The
option was exercised orally,
and that was an effective exercise of it, as
O'Hagan J. found (33). In the receipt
(32) [1952] HCA 74; (1952) 87 CLR 267.
(33) See Niesmann v. Collingridge.which Temple gave Goodwin on 5 January 1943, and in several letters Temple impliedly acknowledged the exercise of the option.
15. I would allow the appeal and order specific performance as claimed by
Goodwin, including provision requiring Temple to join
Goodwin in an
application to the Central Board for its approval subject to an andcrease in
the farm peak by the Local Board, which
no doubt would be guided by the
attitude of the Central Board.
16. The counterclaim should be dismissed.
TAYLOR J The appellant was the unsuccessful plaintiff in a suit instituted by him in which he sought a decree for the specific performance of an agreement for the sale to him by the respondent of a farming property at Chelona in North Queensland. He was unsuccessful both in the suit and in a subsequent appeal to the Full Court and this further appeal is brought from the order of dismissal made by the latter court. Alternative claims were made concerning the existence of a relevant contract between the parties and since the facts of the case are quite unusual it is not out of place to refer to them before stating what those claims were.
2. The property in question was a freehold farming property, some 169 acres
in extent, and in 1942 the respondent was the owner
of it. The particular
activity carried on by the respondent upon the property was sugar-cane farming
and the farm was in what has
been described as a run-down condition. Only
fifty acres were being cultivated and the "farm peak" was forty-five tons only
whilst
the net mill "assignment" of the farm was sixty acres. These matters
were of some importance to the respondent who was desirous of
selling the farm
together with certain plant and equipment for the sum of f3,000 and it was, at
least, doubtful whether the consent
of the Central Sugar Cane Prices Board to
a sale at Ai figure would be forthcoming. Lack of success in obtaining the
Board's consent
would not have resulted in the avoidance of any unconditional
sale agreed upon by the parties, but a sale without such consent would
have
produced a forfeiture of the mill assignment, with the result that, in the
hands of the purchaser, the property would have become
valueless as a cane
producing property. It was therefore of prime concern to both the owner and
any intending purchaser that the
Board's consent to any sale of the property
should be obtained.
3. The appellant's interest in the property was aroused in December 1942, and
on 30 December he called on the respondent's agent,
one Dunworth. On the same
day Dunworth took him to the farm and they both saw the respondent. After the
appellant had inspected the
farm there was considerable discussion between the
parties and the matter of price was mentioned. The respondent said that his
price
was pounds 3,000 including all plant and equipment. The appellant does
not appear to have thought the price was out of place but
he said that he had
only pounds 225, indicating that he could not pay cash for the property and
that the financing of a sale at that
price without liberal turns would be
beyond his capacity. The respondent, for his part, said that he would be
satisfied with a deposit
of pounds 150 provided that he received a further sum
of pounds 150 out of the proceeds of the current crop. According to Dunworth
both the appellant and the respondent were agreeable that the balance of the
purchase money should be payable in annual instalments
amounting to 22 1/2 per
cent of the proceeds of the cane crop in each year and that interest on the
outstanding purchase money should
be payable at the rate of 2 1/2 per cent per
annum, During the course of their conversation on this occasion the respondent
expressed
some doubt whether the Board would approve of a sale at pounds 3,000
in the circumstances as they existed at that time. The parties,
however,
discussed the potentialities of the farm and the respondent said that he was
applying for an increased "farm peak". A substantial
increase in the "farm
peak", it was thought, might dispel any notion which the Board might entertain
that the price was unreasonably
high and after some further discussion the
suggestion was made by the respondent that the parties should meet at
Dunworth's office
on the following day for the purpose of signing a contract
of sale.
4. On the following day the appellant and the respondent met in Dunworth's
office. The evidence clearly shows that at this stage
the appellant was
anxious to purchase the property and that he was prepared, subject to the
terms offered, to pay pounds 3,000 for
it.
5. For his part the respondent was agreeable to a sale on these terms and
Dunworth made a note of the various heads of agreement.
6. The note was in the following terms:
"Proposed Sale of FarmSale to comprise the property described as above together with all Buildings, fences and fixed improvts now erected thereon also all sugar cane crops and other crops (if any) over (indecipherable) also 3 H.P. Engine and chaff cutter, molasses tank. Disc plow, 2 swing plows, 2 Scufflers, Set of harrows, cane planter, cane chipper, Roller, Slide, Dray, Tree pulling machine, Singletons 2 pull Sets, Six Sets plow harness, Shaft Harness, Truck waggon, and Sundry Farm Tools, also Electrical Tools. 8 draught horses, 6 milking cows, and calves and 2 heifers. Also Household Furniture as per list.
Name of Vendor: James Mather Temple
Name of Purchaser: Cecil Victor Goodwin
Description of property:
Price and Terms. Total Price pounds 3,100.1/2%, and balance then at 22 1/2% from future crop Interest 2 1/2%:
Terms of Sale: pounds 150 deposit pounds 150 from 1943 crop plus 22
(2) Option to purchase from as above price and conditions as at July 1943.
(3) Vendor to (indecipherable) to secure increase in Farm Peak(4) In event of the Farm Peak not being increased the Purchaser shall have the option (indecipherable) for another 12 months.
7. The addition of pounds 100 to the consideration appearing in this note was
in respect of the household furniture therein mentioned.
8. There is, I should think, no doubt whatever that if no question concerning
the consent of the Board had arisen a formal contract
would have been signed
that day. But in view of the importance of obtaining the consent of the Board
Dunworth did not prepare a form
of contract. The matter was, he said, "too
complicated" and he suggested that "it was a matter for a solicitor to go into
... before
anything was done". The parties and Dunworth thereupon repaired to
a solicitor's office where the difficulty was again discussed.
This discussion
resulted in the preparation of a document in the following form:
"Mackay,
31st December 1942.
Cecil Victor Goodwin,
Mackay.
Sir,you to me the receipt of which I hereby acknowledge, 1, James Mather Temple of Chelona, Farmer hereby give you an irrevocable option and firm offer to purchase from me free from all encumbrances on or before the thirtieth day of July, 1943, those pieces of freehold land in the County of Carlisle Parish of Homebush described hereunder, namely ... together with all fixed improvements and crops thereon, one 3 h.p. engine and chaffcutter, molasses tank, disc plough, 2 swing ploughs, 2 scufflers, set harrows, cane planter, cane chipper, roller, slide, dray, tree pulling machine, swingle bars (2 full sets), 6 sets plough harness, shaft harness, truck waggon, sundry farm tools, blacksmith tools, 8 draught horses, 6 milking cows and calves and 2 heifers for the sum of three thousand pounds payable by a deposit of one hundred and fifty pounds payable on exercise of option and the consents of the Federal Treasurer, Central Sugar Cane Prices Board and Man Power authorities (or as many of such consents as may then be necessary) a further sum of one hundred and fifty pounds on or before the thirty-first day of December, 1943, and the balance together with interest calculated from the date of the last necessary consent at the rate of two pounds ten shillings per centum per annum by instalments on each mill pay day during the crushing season of the year 1943 and future yens equal to twenty-two and one-half per centum of the gross proceeds of all sugar cane harvested from the said land (to include interest) subject to your entering into a written agreement embodying all usual conditions, including an agreement to keep rates and insurance premiums punctually paid and to efficiently plant and cultivate the said land in such manner as to maintain the farm peak undiminished and to pay all costs and stamp duty, provided that I shall undertake to apply to the Central Sugar Cane Prices Board for an increased farm peak, and unless such peak is raised to at least 400 tons prior to the expiration of this option, then to extend the option hereby granted for a further year and to make a renewed application in 1944, you to be at liberty from the date hereof to enter on the said land and cultivate the sugar cane thereon and efficiently carry on at your own expense the normal work of planting and cultivation, receiving as compensation therefor (in the event of this option not being exercised) the proceeds of all sugar cane supplied to you in the meantime to a mill for crushing, less 2 21/2 per centum which I shall retain for my own use, but all moneys so received by me shall be applied (after allowing a sum equal to interest on the said price during your occupation) as part payment of the said purchase price in the event of the option hereby granted being exercised, Provided that the consideration paid for this option shall be applied in payment of the deposit.
In consideration of the sum of One Hundred and Fifty pounds this day paid by
Yours faithfully,
J. M. Temple"
9. The respondent signed this document on that day but the sum of pounds 150,
the receipt of which it purports to acknowledge, was
not paid by the appellant
at the time. A few days later, however, namely on 5 January 1943, the sum of
pounds 150 was paid by him
to the respondent and the circumstances in which
this payment was made is of considerable importance. On 31 December the
appellant
had said that he "did not carry ... money about with him" and that
"he would have to go home to get it". This he did and on 5 January
1943, he
returned to Dunworth's office where he again saw both Dunworth and the
respondent. According to the former the appellant
said: "My wife and I have
discussed this matter very fully since we saw you gentlemen last and I have
decided to purchase the property."
To Dunworth's inquiry whether he had
brought the money with him the appellant replied: "Yes, I have the deposit,
pounds 150 to pay
the deposit." The appellant's evidence concerning the
discussion that day is somewhat confused. It may, perhaps, be doubtful whether
he had any precise understanding of the option created by the document of 31
December 1942, but whether he did or not there is every
reason for concluding,
upon his evidence, that on 5 January he intended to bind himself to purchase
the property and the plant and
equipment thereon for the sum of pounds 3,000
payable in the manner previously indicated. Moreover, it is reasonably clear
from the
evidence that he made his intention obvious to both Dunworth and the
respondent and it is beyond question that the latter was agreeable
to conclude
an agreement on this basis. There are, it may be said, strong reasons for
thinking that the appellant and the respondent
regarded the option agreement
as a mere formality. Although the option which it gave was an option to
purchase the property for pounds
3,000 at a future time - and possibly as late
as 30 July 1944 - payments made in the meantime pursuant to the concluding
provisions
of the document were, in the event of the option being exercised,
to be applied in payment of the purchase money and there is little,
if any,
doubt that the respondent contemplated that, ultimately, the Board's consent
might be obtained to a formal contract for sale
at a written down price. As
between the parties the practical result would be the same; the only
difference would be that instead
of the respondent giving credit for sums
already paid against a stipulated price of pounds 3,000 an appropiate
allowance would be
made against that sum for the purpose of arriving at a
price to be stiplulated in a formal contract for submission for the Board's
approval. Indeed Dunworth's evidence strongly suggests that this is what the
parties had in mind. In the transcript of his evidence
the following passage
appears:
"You had a strong opinion that the Board would not pass the sale at pounds
3,000? - Yes, I had that opinion.
And you indicated that to the plaintiff and defendant, didn't you? - Yes, I
passed on that opinion. I gave them that opinion, due
to my knowledge of
selling farms.
In other words, getting the sale through was dependent upon getting an
increased peak, wasn't it? - It did not depend on getting
an increased peak at
all.
But getting approval of the sale by the Board depended upon getting an
increased peak? - As far as the plaintiff and defendant
were concerned, the
plaintiff was satisfied, buying the assignment, the 80 acres with 60 acres net
assignment was quite satisfied
to buy on the assignment as he knew the land
was there and he could raise crops and get the necessary peak later on. He was
quite
satisfied on that score. I was quite satisfied and I advised him that
way.
You were quite satisfied the price was a fair price? - Yes.necessary to obtain the consent of the Board, didn't you? - Yes.
You know very well that before the sale could be concluded it would be
And you told the parties that? -- Yes.represented to the plaintiff when he bought -took over the farm - within a couple of months he should have had it down sufficiently to get it through the Board without any trouble.
You told the plaintiff that? - Yes.
You knew the Board would not consent to a sale at pounds 3,000?
- Not immediately.
When would the Board consent? - Had 300 tons of cane been there as
10. It is true that Dunworth said later in his cross-examination that no such
agreement was made expressly by the parties in his
presence but upon the whole
of the evidence there can be no doubt that the parties intended on 5 January
to bind themselves to a
sale of the property for pounds 3,000 payable in the
manner indicated.
11. If confirmation for this view were required it is to be found in
abundance in the subsequent conduct of the parties. The appellant
entered into
possession of the property forthwith and commenced, and thereafter continued,
to farm it. From the proceeds of his crops
payments of 22 1/2 per cent were
regularly made by the Board to the respondent and the balance, upon his
instructions as the owner
of the property, was paid to the appellant. This, it
is said, is quite consistent with the continued subsistence of the option
agreement
and, up to a point, it must be conceded that this is so. But, of its
own force, the option agreement could not have subsisted beyond
30 July 1944,
and the appellant's continued possession beyond that time and the payments
thereafter made cannot be referable to the
terms of that agreement Indeed the
payments made to the respondent in this fashion continued until the sum of
pounds 3,000 and interest
had been paid to him and it must be concluded either
that the agreement was impliedly extended or that there was in existence some
other agreement to which the acts of the parties were referable. The
conclusion that the conduct of the parties over a period of
years plainly
acknowledged the existence of an agreement for sale does not, however, depend
upon consideration or circumstances which
can, on any view, be thought to be
equivocal. From an early stage the appellant was constantly pressing for
completion and his right
to transfer was expressly admitted by the respondent
in his letters. There is little doubt that had it not been for a mistaken
view,
entertained by the respondent upon erroneous advice, that the provisions
of The War Service (Sugar Industry) Land Settlement Act
1946 (Q.) had operated
to avoid the sale it is more than probable that it would have been completed
not later than 1947. In July
of the previous year Dunworth wrote to the
respondent informing him that the appellant had again approached him "with
reference to
having the sale put through". He intimated that he had prepared a
statement showing the appellant's position and added that "it would
appear
that it would now be possible to finalize the matter" and suggested "that the
sale be put through at the figure showing in
the farm statement". The annexed
"farm statement" showed that the appellant then owed to the respondent the sum
of pounds 2,309 15s.
10d., this amount being arrived at by crediting the
payments received on the appellant's account against an original purchase
price
of pounds 3,000 and interest on the outstanding balance from time to
time at the rate of 2 1/2 per cent per annum. The only reply
made by the
respondent - a few days later - was that "it would be better to let it stand
till about Xmas", the suggestion being made
that after the current crop had
been sold "there would be a better chance if the Board happen to challenge us
on anything". It was,
he said, "better to be on the safe side". After further
correspondence the appellant wrote to Dunworth on 11 March 1947, saying that
he was "tired of waiting" and again pressed for completion. Reference by
Dunworth to the respondent evoked a reply, dated 24 April
1947, that he would
"try and be in Mackay by plane on Sunday fortnight" and he asked Dunworth to
get everything ready and said that
they would "push it through". In fact the
respondent did go to Mackay and he and the appellant, together with the
solicitor acting
for the parties, first of all met in Dunworth's office. In
the course of their discussions there a farm statement was produced showing
that the appellant at that stage owed pounds 2,167 16s. 4d. Thereafter the
parties proceeded to the solicitor's office where some
preliminary steps were
taken to prepare the necessary documents for completion. But the matter was
not completed because the solicitor
informed the parties that, in his opinion,
the sale could not be completed because a statute, then recent, enacted, gave
preference
to returned soldiers over civilians in the purchase of sugar farm
lands. No doubt a reference was intended to The War Service (Sugar
Industry)
Land Settlement Act 1946 and the advice then given was that because of that
Act the agreement could not be carried into
effect. It is, I think,
unnecessary to traverse the remainder of the correspondence for it was
reviewed by the learned trial judge
and he observed, after referring to a
letter written by the respondent to his agent on 26 June 1950, that it showed
"in the clearest
possible way that up to that date he (Temple) regarded the
relationship of himself and Goodwin in regard to the farm as being that
of
vendor and purchaser". Indeed it may be said that the conduct of the parties
up to that time confirmed in every possible way the
conclusion to be drawn
from the evidence of both the appellant and Dunworth that on 5 January 1943,
both the appellant and the respondent
intended to make and believed that they
had concluded an agreement for the sale of the property for the sum of pounds
3,000 payable
in the manner already indicated. It is, I should think, also
reasonably clear that this sale was not made subject to the approval
of the
Board although it was contemplated that approval to it might, at some later
stage, be obtained and, failing that, a formal
contract specifying a lesser
consideration would, if necessary, be submitted for approval. In these
circumstances it is not surprising
that, although the statement of defence
filed on the respondent's behalf denied the existence of any such contract, he
was not prepared
to support his formal denial by his sworn evidence.
12. What has been said is but a brief statement of the evidence in the case
but it serves to indicate the difficulties which confronted
the trial judge
upon the hearing of the suit. In the suit the appellant claimed a decree for
the specific performance of an agreement
between the parties for the sale of
the subject property at pounds 3,000 and based his allegation that the parties
had made such
a contract upon two grounds. The first was that the appellant
had exercised the option given by the document of 31 December 1942,
and the
second, that the contract was made orally and by conduct on 31 December 1942,
or alternatively, on 5 January 1943, or in
the further alternative, on a date
between 31 December 1942, and 30 July 1943.
13. The suit failed in the first instance because, as it seems to me, the
learned trial judge regarded the option agreement as the
only possible source
of the appellant's rights in the matter and he took the view that, although
the appellant intended on 5 January
1943, to exercise the option so given and
the respondent believed that he had done so and for a number of years acted on
this belief,
the option had never been effectively exercised. The relevant
findings of the learned vial judge are to be found in the following
passages
in his reasons:
"I find that on 5 January 1943, the plaintiff did say that he had decided to
purchase the property and that he did describe the
pounds 150 as a deposit.
Though Mr. Amiet had explained the nature of an option to the parties on 31
December 1942, I am satisfied
that the plaintiff understood, but vaguely, the
legal position which the document of 31 December sought to overcome. He knew,
however,
that he had to exercise the option granted to him under that document
before there was a sale. I am satisfied and I find that in
saying on 5 January
1943, that he had decided to purchase the farm, and in paying the pounds 150
describing it as a deposit, he was
intending to exercise that option, and that
the defendant understood that he was then exercising the option. I find also,
that assuming
the option could be exercised orally, the option was in fact
exercised that day ...
There is ample evidence, both oral and in writing, that from 1947 on, that
the plaintiff was pressing for finalization of the sale
of the farm. It is
quite clear from all that evidence that the plaintiff, the defendant and
Dunworth all believed that there had
been a sale of the farm. I am quite
satisfied that after 5 January 1943, the only question in their minds, was not
if that sale was
to be finalized, but when it was to be. There were
difficulties to be surmounted if the interests of the parties to the sale were
not to be jeopardized. But at no stage prior to October 1950, was there any
suggestion by the defendant that there had been no sale
and that the plaintiff
was merely a share farmer."
14. But the appellant failed in his suit because the learned trial judge
appears to have thought that the conclusion of a binding
agreement between the
parties on 5 January could, in the circumstances of the case, result only from
the effective exercise of the
option which the document of 31 December
purported to create and, since the exercise of the option was dependent upon
the execution
of "a written agreement embodying all usual conditions", the
steps taken by the appellant on 5 January were quite insufficient to
bring
into existence a binding contract of sale. The Full Court, on the other hand,
was of the opinion that, although the option
required for its effective
exercise the execution by the appellant of such a written contract, that
requirement was one which the
respondent could and, in fact, did, waive. But
since it was thought to "be beyond doubt that the value of this land to the
appellant,
without any assignment, would be greatly reduced, and that he would
not even have contemplated a purchase of it at pounds 3,000 without
its
assignment" and, since the purchase money, or some part of it, was, in the
language of the option agreement, payable conditionally
upon the approval of
the Board being obtained, the facts showed, at the best for the appellant, "a
conditional sale - that is, a
sale, conditional upon the consent of the
Central Board".
15. In the circumstances of this case the view is well open that the
conclusions both of the learned trial judge and the Full Court
attached too
much importance to the existence of the option agreement and to its precise
terms for even if it be taken as the sole
measure of the parties' contractual
rights on 31 December 1942, there was no reason, had they been so minded on 5
January 1943, why
they should not have made a new agreement that day. There
was no legal impediment to the rescission of the option agreement either
expressly or by the conclusion of a contract of sale between the parties.
Indeed to hold, as the Full Court did, that the respondent
accepted what was
then done by the appellant as an acceptable or sufficient exercise of the
option previously given is tantamount
to saying that the parties did make a
new agreement, for the waiver which the Full Court considered had occurred
could result only
from the further agreement of the parties. But if the view
is taken that what occurred constituted an exercise of the option then
the
sale was conditional upon the consent of the Board being given, whereas, if
the correct conclusion is that the parties intended
to sell and purchase
irrespectively of that consent being given or not the parties became
unconditionally bound. On either view,
however, the appellant was entitled to
some relief against the respondent. On the first hypothesis he was entitled to
an order requiring
the respondent to join in making an application to the
Board for its approval to the sale and, subject to that approval being given,
to a decree for specific performance. The fact that the sale was conditional
in this sense did not mean that the respondent was entitled
to succeed in the
suit and, it seems to me the reasoning of the Full Court should have led to
the appeal before it being allowed.
16. That the parties did, on 5 January 1943, agree to sell and purchase the
property appears, as I have already said, to be beyond
doubt; the real
difficulty is in determining whether it was a condition of their agreement
that the sale should be subject to the
approval of the Board. No doubt there
is much to be said for the view that forfeiture of the mill assignment would
have rendered
the property of little value in the hands of the appellant and
that it is unlikely that he would have committed himself to its purchase
unconditionally. But when the evidence is examined it is seen clearly enough
that this is just what the parties did intend. Once
it is established - as I
think it was - that an agreement for the sale of the property at pounds 3,000
was made on 5 January 1943,
it becomes reasonably apparent that neither the
sale itself nor the obligation to pay any part of the purchase money was
conditional
upon the approval of the Board being obtained to that sale. Indeed
the whole of the purchase money was paid and received without
any such
approval being obtained and although, no doubt, the parties contemplated that
at some future time an application for the
approval of that sale might be made
it was, to say the least, far from certain that any such application would
ever be made. Rather,
the parties appear to have contemplated that at some
future time the Board's approval would be obtained to a formal contract
specifying
a lesser consideration. To say, in these circumstances, that it was
intended and agreed that the sale for the sum of pounds 3,000
was to be
subject to the approval of the Board and that, until such approval had been
obtained, the contract should be conditional
only appears to put an entirely
artificial complexion on the dealings of the parties. As already indicated
those dealings, in my
opinion, resulted in an oral agreement for the sale of
the property for the sum of pounds 3,000 payable in the manner already set
out
and the sale was not subject to any such condition.
17. The only other obstacle in the way of the appellant obtaining a decree
for specific performance is the fact that the agreement
for sale was oral and
the objection is taken that the evidence does not sufficiently establish part
performance of the contract.
Normally, the fact that a purchaser has entered
into and remained in possession would be adequate, but in the present case it
is
contended that his assumption of possession and his continued working of
the property cannot be said to be exclusively referable
to the existence of
any such contract. In particular it is said that his possession is, at least,
equally referable to the concluding
provisions of the option agreement. As
already pointed out this may, possibly, be said to have been so for a limited
time but the
option agreement did not, of its own force, continue to subsist
after 30 July 1944. Since that date the appellant has continued in
possession
and what has occurred since that time cannot be referable to the option
agreement nor can a renewal or extension of that
option agreement be implied
in the circumstances of this case. If nothing else appeared it may have been
possible to make such an
application but in the circumstances of this case his
continued possession is solely and exclusively referable to the proved
agreement
for sale (34).
18. For the reasons given the appeal should be allowed and a decree made for
the specific performance of We agreement.
19. Appeal allowed with costs. Order appealed from discharged In lieu thereof
order that the appeal to the Full Court of the Supreme
Court of Queensland be
allowed with costs and that the judgment and order of O'Hagan J. be
discharged. Substitute therefor the following
declarations and orders, viz:
(1) a declaration that the contract in the plaintiff's statement of claim
mentioned ought to be specifically performed and carried
into execution;
(2) a declaration that the plaintiff's obligation to pay the purchase money
has been fully performed and satisfied;
(3) a declaration that the plaintiff is immediately entitled to a transfer
of an estate in fee simple in the lands more particularly
described in par. 2
of the plaintiff's statement of claim;
(4) an order that the plaintiff be at liberty to apply to the Supreme Court
for such further relief in the action as may appear
necessary or proper;
(5) an order that the defendant pay the plaintiff his taxed costs of the
action up to and including this judgment or order;
(6) an order that the defendant's counterclaim be dismissed with costs;(7) an order that the parties be at liberty to apply to the Supreme Court generally as they may be advised.
20. Cause remitted to the Supreme Court for the purpose of carrying this
order into effect.
(34) Cf. Dowell v. Dew (1842), 1 Y and CCC 345 [1842] EngR 360; (62 ER 918) and Powell v.
Lovegrove (1856), 8 De G.M. and G. 357 (44 ER 427).
Solicitor for the appellant, S. B. Wright, Mackay, by McGregor, Given and
Co.
Solicitors for the respondent, Macrossan and Amiet, Mackay, by Macrossan and
Co.
(The permission of The Incorporated Council of Law Reporting for the State of
Queensland for the republication of the summary of
argument in this case from
(1957) St R Qd 376 is acknowledged.)
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