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High Court of Australia |
HALL v. BUSST [1960] HCA 84; (1960) 104 CLR 206
Vendor and Purchaser - Appeal
High Court of Australia
Dixon C.J.(1), Fullagar(2), Kitto(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Vendor and Purchaser - Contract of sale of land with fixed improvements and chattels - Restraint by covenant on alienation of the land by the purchaser without the consent of vendor - Validity - Option of re-purchase - Price - Original sale price plus the value of additions and improvements to the property since original sale less the value of all deficiencies of chattel property and a reasonable sum to cover depreciation of all buildings and other property on the land - Uncertainty - Enforceability of option.Appeal - As of right - Competency - Order on special case - Final or interlocutory.
HEARING
Brisbane, 1960, June 16, 17;DECISION
November 23.2. It will be noticed that the price stated in figures in cl. 5 is identical with the purchase price under the contract. The option described in cll. 4, 5 and 6 appears therefore to be in effect an option to take the land back refunding the price and paying for the additions and improvements at their value less deficiencies and depreciation. (at p212)
3. The completion by registration of the transfer took place at some date prior to 29th November 1957. On that date the defendant as vendor entered into an agreement to sell the land, together with certain fixtures and household furniture and chattels for the sum of 8500 pounds. The agreement to sell to certain purchasers recited that the vendor, that is the defendant, is the registered proprietor of an estate in fee simple in the land and it contained a provision that possession should be taken on payment stipulated for within thirty days of the date thereof. It is probably not material to the question that we have to decide but it is the fact that this agreement also contained a provision that the purchasers should not sell assign let mortgage charge or encumber or part with the possession of the property or any part thereof or any estate or interest therein or their right title and interest in this agreement or the property or any part thereof without the consent in writing of the vendor first had and obtained. (at p213)
4. Possession was in fact given to the purchasers under this agreement on 29th November 1957 by the defendant. It appears to be assumed by the parties to the cause that the execution of the contract of sale and the placing of the purchasers in possession amounted to a transfer assignment setting over or lease of the land within the meaning of cl. 3 of the indenture between them. At no time did the defendant obtain the consent in writing of the plaintiff in pursuance of cl. 3 nor did the defendant give the plaintiff any notice in writing or otherwise of her intention of dealing with the land as required by cl. 4 of that indenture. (at p213)
5. In these circumstances the plaintiff brought an action claiming damages for breach of the stipulation that the defendant should not transfer assign set over or lease the land without the plaintiff's consent in writing first obtained and of the stipulation that she should give to the plaintiff notice in writing of her intention so to deal with the fee simple of the land or any part thereof and give to the plaintiff the right of purchasing the fee simple. (at p213)
6. The parties agreed upon the present case stated in the action and submitted for the opinion of the Court three questions. The questions are whether the instrument dated 15th July 1949 imposed upon the defendant any legal obligation (a) to obtain the consent of the plaintiff to the transactions referred to (that is to say, the re-sale of the property and putting the purchaser upon such re-sale in possession); (b) to give to the plaintiff any notice of her intention to enter into the said transaction; (c) to give to the plaintiff any option of purchasing the said land or any improvements thereon. The parties also agreed that if the Court should be of opinion that the questions should be answered in the affirmative directions should be given for the action to proceed to trial on the issue of damages. If the Court should answer the questions in the negative, then judgment was to be entered for the defendant. They expressed no agreement as to what should happen if one or more of the questions were answered in the affirmative and the other or others in the negative. In fact Jeffriess J. who heard the case stated answered all the questions in the affirmative and ordered that the action proceed to trial on the issue of damages. His Honour's order was not drawn up so as expressly to enter judgment for the plaintiff but probably this is to be implied in his order. From that order the defendant thereupon appealed to the Full Court of the Supreme Court of Queensland: the appeal was dismissed. It is from the order of the Full Court that the present appeal is brought to this Court. (at p214)
7. The appeal was supported by counsel on the ground that the price payable on the exercise of the option under cll. 4 and 6 of the indenture was prescribed or expressed by cl. 5 in terms which left it uncertain so that the option was unenforceable and cl. 3 formed but an introductory provision to cll. 4, 5 and 6 and was not independently enforceable. The question was raised upon the hearing of the appeal whether, if it were a provision having an independent effect, cl. 3 would not be void as a restriction upon alienation which was unqualified. The first step in deciding the matter is to form some conclusion as to the interpretation of the four clauses. (at p214)
8. To begin with cl. 3, it is to be noted that it is expressed to forbid (without consent) dealings of four kinds with any part of the lands. The whole of the land of course must be covered by the prohibition but no alienation of the descriptions mentioned of any area is permitted. The word "transfer" covers, so it would seem, any grant of any legal estate or interest. That is confirmed by the reference to mortgages in the exception of a mortgage to a banking institution. "Assignment" seems to cover the creation of equitable estates and perhaps interests though how far it goes may perhaps be questionable. This too is true of the words "set over," although on the other hand "lease" is clear enough. Then it is important that the consent must be in writing. There are no words in any of the clauses making a refusal on the part of the plaintiff to exercise the option given by cll. 4 and 6 equivalent to consent or to a dispensation from consent and any argument that this should be implied seems to be met by the very explicit requirement of cl. 3, including the necessity it imposes that the consent shall be in writing. Another matter which should not be overlooked is that, by definition, the words "grantor" and "grantee" include the executors administrators and assigns of the respective parties. It is a consideration which looks against the view that cl. 3 is confined in its operation to the life of the vendor and the life of the purchaser and is personal to them only. Obviously the machinery of cll. 4 and 6 is directed, at all events in part, to the exercise of the option but there is no cogent reason for treating the words with which cl. 4 commences as meaning anything less than they say, namely that the purpose for which a notice must be given is to obtain the consent mentioned in cl. 3, viz. the consent in writing of the plaintiff. The words with which cl. 6 commences, "This option", might suggest that the option applied but once, that is to say, gave a single election, but the clause goes on to say it shall remain open "for exercise by the grantee at all times" for a period of a month from the date of the notice from the grantor of her intention to deal with the fee simple. The expression "at all times" seems inconsistent with the notion that the option can arise once only, once for all. The meaning seems to be that unless the option is exercised on the first occasion upon which the defendant gives a notice under cl. 4 or the fee simple is transferred pursuant to a consent in writing then obtained, the option will arise again when and if the defendant again gives a notice, and so on toties quoties. It is noteworthy that cl. 6 speaks of a notice of intention to deal with the fee simple whereas cl. 4 speaks of an intention so to deal with the fee simple and the "so" there appears to go back to dealings referred to in cl. 4 which certainly include mortgaging and leasing and doubtless cover the creation of other interests less than a legal estate in fee simple. Probably the expression in cl. 6 as well as in cl. 4 includes all that cl. 3 covers. (at p215)
9. The conclusion to be drawn from the foregoing considerations as to the meaning of cll. 3, 4 and 6 is that an indefinite prohibition is intended of alienation without consent of the fee simple of the land or any part of it and of the creation of any less estate or interest therein whether legal or equitable. Upon any proposal so to alienate or to create such an interest, it is intended that notice must be given, and an option then will arise to purchase the fee simple. It is intended that these obligations and rights shall belong to the parties respectively and their executors administrators and assigns. It follows that, so far as meaning goes, cl. 3 is not merely ancillary to cll. 4, 5 and 6 but is intended to have as well an effect that is independent, that is, so long as the option is not exercised. (at p215)
10. Now, as has already appeared, the claim upon the plaintiff's writ is expressed as a claim for damages for breach of the covenants or conditions in the indenture not to transfer assign or set over or lease the land without consent in writing and to give to the plaintiff notice of intention so to do and to give to the plaintiff the right during the currency of the notice of purchasing. There is no question of specific performance of the option and no question of the option attempting to confer an equitable interest in land bad under the rule against perpetuities. It is simply a claim to a remedy at common law in damages for breaches of three several covenants which the plaintiff finds in cll. 3 and 4 of the indenture. Plainly the third of the covenants so sued upon depends upon the existence of an enforceable option considered as a contract and the option cannot be enforceable unless the purchase price payable on the exercise of the option is sufficiently certain. Of course there is no difficulty about the money sum stated. But that is merely the return of the original price paid by the defendant as purchaser. The point lies in what is added. It is in effect the payment or recompense to the defendant in respect of her work and expenditure in the meantime. The addition is to consist of the value of all additions and improvements to the property since her purchase of the island less the value of all deficiencies of chattel property and a reasonable sum to cover depreciation of all buildings and other property. There need be no hesitation in treating the reference to deficiencies of chattel property as implying, notwithstanding the omission to mention chattels in cl. 4, that the chattels are resold. Probably e converso it should be implied that "additions" in cl. 5 include additional chattels. But however that may be "the value of all additions and improvements" is not, in my opinion, sufficiently certain to give rise to an enforceable contract. There could be no external standard of value of additions and improvements to the island: no standard yielding a figure reasonably fixed or ascertainable. Still less would it be possible to find an external standard for the reasonable sum to cover depreciation even if one knew what "other property" is referred to. And indeed the value of deficiencies is another uncertain element in the ascertainment of the price. It is said that "value" or "fair value" is to be found objectively by a jury. But here we are dealing with substantive rights, not the procedure by which they are enforced. Can it be supposed that men contract to pay a price if and when fixed by a jury in a law suit? I am aware that it is said on the authority of a dictum of Sir William Grant in Milnes v. Gery [1807] EngR 448; (1807) 14 Ves Jun 400, at p 407 [1807] EngR 448; (33 ER 574, at p 577) , and a dictum of Lord Cranworth L.C. in Morgan v. Milman (1853) 3 De G M & G 24, at p 34 (43 ER 10, at p 14) , that it is enough if a contract for the sale of land stipulates expressly or impliedly that the price shall be the fair value: see Halsbury's Laws of England, 3rd ed., vol. 8, Contract, p. 103, par. 178; Fry on Specific Performance, 6th ed. (1921), p. 165, par. 354; Williams on Vendor and Purchaser, 4th ed. (1936), vol. 1, pp. 4, 5, note (r). But that could only be when a recognized value or standard of value measuring the price existed. It would be, so it seems to me, as absurd to apply this to an island off the coast of Queensland as it would be to apply it to a great modern city building. In any case it is not a price consisting of the fair value of land that we are dealing with. (at p217)
11. In my opinion the price described in cl. 5 is unascertained and is too uncertain to be the basis of an enforceable contract. The option is therefore unenforceable. (at p217)
12. But I have already expressed the view that cl. 3 may be treated as an independent stipulation. I am not sure that it has yet been broken but of course the completion of the contract of 29th November 1957 must involve a contravention of its terms even if the damages would be only nominal. (at p217)
13. But the question arises whether, considered as an obligation binding the purchaser (that is the defendant) her executors administrators and assigns and operating upon her and her legal personal representatives indefinitely, cl. 3 is not void as an attempt wholly to restrain alienation. It could not of course bind an alienee once an alienation was made: for the alienee would not be a party to the contract: and ex hypothesi we are not concerned with any question of the effect it might have upon the land in the hands of an alienee not taking for value without notice. But we are concerned with a contract always operating upon the defendant and her "estate", that is, upon her legal personal representatives (upon whom the land may devolve) until an alienation occurs. The question whether a bond or covenant or contract purporting to impose a total contractual restraint upon alienation is void does not seem to be settled. A condition doing so attached as a condition subsequent to the estate is of course void. The invalidity may be put on the ground of repugnancy to the grant or upon public policy or for that matter it may conceivably be attributed to an indirect effect of Quia Emptores. That is immaterial, for it is a known rule that the condition is void. But with contractual restraints there is no fetter upon alienation which does more than sound in damages, that is, unless a doctrine of equity intervenes to make it bind the land. Coke at one time seemed to think that a bond with a condition against alienation of an estate was good: Coke Litt. 206b. And in Freeman v. Freeman [1691] EngR 61; (1691) 2 Vern 234 (23 ER 751) a bond against barring an entail was held valid. But according to Tatton v. Mollineux (1610) Moore (KB) 809, at p 810 [1688] EngR 134; (72 ER 920) Coke is said to have taken a contrary view in the case of Poole. (at p217)
14. In a learned article by Mr. Charles Sweet upon Restraints on Alienation (1917) 33 LQR, pp 236, 342 that writer does not refer directly to the question whether a covenant or agreement purporting to restrain alienation is or may be valid; but the author says, "If property is given to A absolutely he cannot be restrained from alienating it by any device, whether the device takes the form of a condition against alienation or a gift over on alienation; the attempted restraint is contrary to public policy, and its form is immaterial" (p. 240). Dr. Glanville Williams has attacked the logical basis of invalidity for repugnancy (1943) 59 LQR, p 343; (1944) 60 LQR, pp 69, 190 In the course of doing so the learned writer ((1943) 59 L.Q.R., pp. 349-351) invoked the alleged contrast of a contract covenant or bond not to alienate as something inconsistent with the theory that a condition against alienation is repugnant. In effect he suggested that the distinction was untenable. The ground for denying the validity of a contractual restriction upon alienation is that it is a principle of the law that private property should be fully alienable. See per Jessel M.R. in In re Ridley; Buckton v. Hay (1879) 11 Ch D, at pp 648, 649 and Sweet (1917) 33 LQR 236 Cruise, 2 Dig. p. 6, in effect expresses a view that a contractual restriction upon the alienation of an absolute estate if unqualified should be considered void and this seems to accord with modern views of policy. Cruise, after referring to the supposed distinction between a condition and a covenant or contract, says this: "This doctrine appears extremely questionable, as it offers an obvious mode of restraining a person from those rights over an estate which the common law gives him; consequently of frustrating the common law, as fully as if a condition of this kind were allowed to be inserted in a conveyance of land; and in some cases it appears not to have been allowed." Indeed it is impossible to doubt that a fetter on alienation may be imposed by covenant which is as effective over a very long period of time to prevent alienation of land as a condition subsequent would have been had it been valid. I think therefore that cl. 3 should be considered void as an independent restraint on alienation. So far as cl. 4 relates to consent it clearly falls with cl. 3. (at p218)
15. For the foregoing reasons I am of opinion that the questions should be answered in the negative. (at p218)
16. I think the appeal should be allowed. An objection was taken to its competence on the ground that the order appealed from was interlocutory. I think that the order was intended as a judgment for the plaintiff for damages to be assessed and therefore that it is final in the sense that word bears in s. 35 (1) (a) (2) of the Judiciary Act 1903-1955 (Cth). (at p219)
FULLAGAR J. By a contract in writing dated 15th July 1949 the respondent agreed to sell, and the appellant to buy, certain land (which was in fact a small island off the coast of Queensland) together with "the whole of the fixed improvements furniture slipways boats goods chattels effects and things now in or upon the said land" for the sum of 3157 pounds 4s. 0d. payable as in the contract provided. On the same day a deed was executed between the same parties, in which the appellant was "for herself her executors administrators and assigns called the 'grantor'", and the respondent was "for himself his executors administrators and assigns called 'the grantee'." This deed recited the contract of sale, and contained the following provisions: "3. The Grantor shall not at any time transfer assign set over or lease any part of the said lands (other than by way of mortgage to a banking institution) without the consent in writing of the Grantee first obtained. 4. For the purpose of obtaining the consent of the Grantee in the preceding clause mentioned the Grantor shall give to the Grantee one calendar month's notice in writing of her intention to so deal with the said fee simple or any part thereof And during the currency of that notice the Grantor doth hereby give and grant to the Grantee the first option of purchasing the said fee simple and all improvements thereon on the terms and conditions herein contained. 5. The purchase price relating to such option shall be the sum of Three thousand one hundred and fifty-seven pounds four shillings (3157 pounds 4s. 0d.) to which shall be added the value of all additions and improvements to the said property since date of purchase by the Grantor (such value to be taken as at date of exercise of this option) and from which shall be subtracted the value of all deficiencies of chattel property and a reasonable sum to cover depreciation of all buildings and other property on the land. 6. This option shall remain open for exercise by the Grantee at all times for a period of one month from the date of giving of the notice by the Grantor of her intention to deal with the said fee simple and this option may be exercised by the Grantee by giving notice to the Grantor or leaving such notice for her at the office of Messrs. J. J. Bell & Bell Solicitors of Tully or their successors in office." (at p219)
2. A transfer of the land by the respondent to the appellant was registered on 29th November 1957. On the same day the appellant, without obtaining the consent required by cl. 3, and without giving the notice required by cl. 4, entered into a contract in writing whereby she agreed to sell, and a Mr. and Mrs. Druitt agreed to buy, the land and chattels the subject matter of the instrument of 15th July 1949 for the sum of 8500 pounds. On 14th January 1958 the respondent commenced in the Supreme Court of Queensland an action against the appellant for damages for breaches of cll. 3 and 4. No pleadings were delivered, but the parties agreed on the statement of a special case for the opinion of the Court on three questions, viz. whether the deed of 15th July 1949 imposed upon the defendant any legal obligation (a) to obtain the consent of the plaintiff to the transaction with Mr. and Mrs. Druitt, (b) to give to the plaintiff any notice of her intention to enter into the said transaction, (c) to give to the plaintiff any option of purchasing the land or any improvements thereon. The case came before Jeffriess J., who answered all the questions in the affirmative, and directed that the action should proceed to trial on the issue of damages. This decision was affirmed by a Full Court (Philp, Stanley and Stable JJ.), and the present appeal is against the order of that Court. (at p220)
3. The argument for the appellant is not, I think, that the deed as a whole, or cl. 5 in particular, is void for uncertainty. If that were the argument, I should be unable to accept it. The word "value" in cl. 5 is not meaningless, nor is the expression "a reasonable sum to cover depreciation." It is true that the word "value" is capable of different meanings. It may bear one meaning in one statute or contract, and another meaning in another statute or contract. The value referred to may be "market value," or "replacement value," or it may be that the purpose of the statute or contract will be best achieved by taking the value as cost less depreciation. But, however difficult the task may be, the task of giving a meaning to the word "value" is such a task as courts daily undertake. It is true too that, when the task of interpretation has been performed (as in Spencer v. The Commonwealth (1907) 5 CLR 418 ), extreme difficulty may be felt in answering the ultimate question of fact, and it may be that in the present case, as in Secretary of State for Foreign Affairs v. Charlesworth, Pilling & Co. (1901) AC 373 , unusual circumstances increase the difficulty of deciding the question of fact. Lord Hobhouse in that case said: "It is quite true that in all valuations, judicial or other, there must be room for inferences and inclinations of opinion which, being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others. Everyone who has gone through the process is aware of this lack of demonstrative proof in his own mind, and knows that every expert witness called before him has had his own set of conjectures, of more or less weight according to his experience and personal sagacity. In such an inquiry as the present, relating to subjects abounding with uncertainties and on which there is little experience, there is more than ordinary room for such guesswork." (1901) AC, at p 391 . But, when all is said and done, a question of the value of land or a chattel is an intelligible question of objective fact, to be decided on evidence like any other question of fact, and courts cannot, when such a question arises, refuse to decide it on the ground that it is too difficult. (at p221)
4. The question of the value of the chattels on the land in the present case might, as my brother Windeyer points out, arise and have to be decided in a variety of circumstances apart altogether from the deed of 15th July 1949. It would arise on a claim for compensation, if the land and chattels were compulsorily acquired by the Commonwealth or the State of Queensland. It would arise if the chattels were insured against fire and destroyed by fire, and an action brought on the policy. It would arise if the chattels were maliciously or negligently destroyed, and an action for damages were brought against the person responsible. In each of these cases the court would have to determine the value of the chattels, and a question of a reasonable allowance for depreciation could easily arise. In either of the last two cases, if there were a jury, the court would have to explain to the jury the basis on which the valuation should be made, and the jury would have to find the value as a fact. Prima facie, I think, the word "value" bears the meaning given to it in Spencer's Case (1907) 5 CLR 418 . (at p221)
5. But the argument which seems to me to be refuted by what I have said is not the real argument of the appellant in this case. The real argument is that, if notice were given under cl. 4 of the deed, and the option were exercised by the respondent, no binding contract would be made. What would purport to be a contract between the appellant and the respondent in the terms of cl. 5 would not really be a contract at all. Clauses 3, 4 and 5 are not, it is said, severable one from another. The promise made by cl. 3 is made on the fundamental assumption that, if the notice is given and the option exercised, a contract of sale binding on the appellant and the respondent will come into existence. If an exercise of the option cannot produce an enforceable contract, the implied condition, to which cl. 3 is subject, is not fulfilled, and cl. 3 is not binding on the appellant. The reason why an exercise of the option could not produce an enforceable contract of sale is said to be that no price is fixed by cl. 5. (at p221)
6. The question thus raised has not seemed to me to be free from difficulty, but I have formed the opinion that the argument for the appellant is sound. (at p221)
7. So far as contracts for the sale of goods are concerned, there may or may not be a general rule, applicable in respect of executory, as distinct from executed, contracts, that, where the price is not otherwise determined, a promise to pay a reasonable price is to be implied: see Acebal v. Levy [1834] EngR 402; (1834) 10 Bing 376, esp at p 382 [1834] EngR 402; (131 ER 949, esp at p 952) , Hoadly v. M'Laine (1834) 10 Bing 482 (131 ER 982) , Sale of Goods Act 1896 (Q.), s. 11, Chalmers on Sale of Goods, 11th ed. (1931), p. 27, note (c). But such a rule, if it exists, is anomalous. The contract contemplated here is not a contract for the sale of goods: it is a contract for the sale of "land and improvements." In such a case there cannot, I think, be held to be a binding contract unless the three essential elements are the subjects of concluded agreement. The three essential elements are the parties, the subject matter and the price. If, but only if, these are fixed with certainty, the law will supply the rest. When it is said that the price must be fixed with certainty, it is not, of course, meant that it must be fixed at a specified figure. It will be sufficient if the sale is expressed to be for a price or value to be fixed by a named or described person. In such a case, if the named or described person dies or cannot or will not fix the price or value, the contract cannot, as a general rule, be enforced, but, if and when he does fix the price or value, there is a concluded contract. If, however, the parties are silent as to price, there can be no implication of a term that a reasonable price is to be paid. And it is not, in my opinion, sufficient if the sale is expressed to be "for the value of the land" or "for the fair value of the land" or "for a reasonable price." For, in such a case, the actual price payable can only be arrived at in one of two ways - either by further agreement between the parties or by the court in an action or suit. If the price is fixed by further agreement, cadit quaestio. If it is not so fixed, the party who brings an action or suit comes into court without a complete cause of action. He is saying to judge or jury: "Complete our contract for us, and then enforce it." It is the same as if the "contract" had said: "for a price to be fixed by a judge or a jury." And clearly a contract in those terms could not be enforced, for no breach antecedent to litigation could be assigned. The reference to proceedings for compensation under the Lands Clauses Consolidation Act. (at p222)
8. There are passages in the text-books which state or suggest that a "contract" to sell land "for the fair value thereof" is a binding and enforceable contract. Thus, in Halsbury's Laws of England, 2nd ed., vol. 7, p. 221, it is said that "If the sale is at a fair valuation, no particular mode of arriving at the value being indicated, the court may enforce the contract and direct the mode of valuation." For this proposition Emery v. Wase [1803] EngR 589; (1803) 8 Ves Jun 505 (32 ER 451) is cited. But there the contract was to sell "at the valuation of Mr. John Bishton," and all that Lord Eldon decided was that Mr. Bishton had not made a proper valuation, and that a bill for specific performance had been rightly dismissed at the Rolls. I have not been able to find anything which I would regard as really supporting these statements except a dictum of Sir William Grant in Milnes v. Gery [1807] EngR 448; (1807) 14 Ves Jun 400, at p 407 [1807] EngR 448; (33 ER 574, at p 577) . The Master of the Rolls, distinguishing the case of a sale at a valuation to be made by a named person, said: "The case of an agreement to sell at a fair valuation is essentially different. . . . In that case no particular means of ascertaining the value are pointed out: there is nothing therefore precluding the Court from adopting any means, adapted to that purpose." (1807) 14 Ves Jun, at p 407 (33 ER, at p 577) . But I cannot think that Sir William Grant meant to express a considered opinion that any agreement for sale "at a fair value" would be enforced in equity. It would, I think, be quite contrary to principle to so hold. There are cases where equity has enforced a contract for a lease at a fair rent, where possession has been given and taken, and it is referred to the Master to find the fair rent (see e.g. Gregory v. Mighell [1811] EngR 580; (1811) 18 Ves Jun 328 (34 ER 341) , and equity would probably use its machinery to enforce an agreement for sale in similar terms after conveyance. But that is as far, I think, as the authorities in equity go. We are dealing here with an action at law. (at p223)
9. For these reasons, I am of opinion that this appeal must succeed. But I think that the appellant is entitled to succeed on another ground also, although this ground was not argued either before Jeffriess J. or before the Full Court. This ground is that, even if we regard cl. 5 as fully effective and capable of giving rise to a binding contract on exercise of the option, the restraint on alienation imposed by cl. 3 of the deed on the owner of the fee simple is repugnant to the estate and void. (at p223)
10. It seems a little strange that, in all the cases in which restrictions of this character have been considered, the restriction has been imposed by way of condition. The restriction in the present case is imposed not by way of condition or conditional limitation but by covenant. I agree, however, with the Chief Justice, whose judgment I have had the advantage of reading, that, for the reasons given by him, the principle applicable to a condition or a conditional limitation must be equally applicable to a covenant by a transferee of a fee simple. The outstanding question then is whether the covenant in the present case so restricts alienation that it is void at common law. The first step must be to construe the deed which contains the covenant. (at p224)
11. If cl. 3 stood alone, I should say that it would be obviously void, for it is absolute in terms: consent could, of course, be withheld at will - for any reason or for no reason at all. But cl. 3 is followed by cll. 4 and 5. The deed is on any view extremely confused and elliptical - it is difficult to imagine anything worse - but I think it was intended that, if the notice were given under cl. 4, and the option were not exercised within the month, the appellant was to be at liberty to do any of the things prohibited by cl. 3. It is true that the deed is completely silent as to any consequences to be attached to a failure to exercise the option, and it involves making a drastic implication to say that the consequence is that cl. 3 ceases to have any effect. It would have been so easy to provide simply that the appellant should not alienate without first offering the property to the respondent at a stated price. But I think, on the whole, that the implication ought to be made. The expressed purpose of the notice is "to obtain consent." The notice is a notice of "intention to deal with the fee simple." The "purpose" could not be achieved, and the "intention" could not be carried out, unless cl. 4 were construed as, in effect, giving to the respondent not merely an option to purchase but an option to purchase or consent. (at p224)
12. But I am of opinion that the restriction, even so construed, is void. In Attwater v. Attwater [1853] EngR 1043; (1853) 18 Beav 330 (52 ER 131) there was a condition against "selling out of the family" or to anyone except one of the testator's brothers. This was held void. The case was distinguished by Jessel M.R. in In re Macleay (1875) LR 20 Eq 186 , when the condition was against "selling out of the family" simpliciter. The Master of the Rolls said that the question was whether the condition "takes away the whole power of alienation substantially" (1875) LR 20 Eq, at p 189 . But this decision was severely criticized on perfectly logical grounds by Pearson J. in In re Rosher; Rosher v. Rosher (1884) 26 Ch D 801 . There the condition was not to sell without first giving to the testator's wife an option to purchase for 3000 pounds. The property was worth 15,000 pounds. The condition was held void. And in Crofts v. Beamish (1905) 2 IR 349 a condition that the donee should not sell without first giving to a particular person an option to purchase at a price to be fixed by the arbitration of "three respectable gentlemen" was held void. These cases provide, in my opinion, sufficient authority for holding the restriction in the present case void: cf. In re Elliot; Kelly v. Elliot (1896) 2 Ch 353 . It is true that, on my construction of the deed, it is possible to get rid of the restriction. But the appellant can only get rid of it by giving to the respondent an option of purchase at a fixed price. She may not wish to alienate for many years: the restriction is of indefinite duration. She may then only wish to let the property for twelve months or to mortgage it for a few hundred pounds. But she cannot sell or lease or mortgage without giving the option of purchase to the respondent. And, when she does wish to alienate, the property may be worth a great deal more than 3157 pounds plus and minus the items mentioned in cl. 5: it was apparently in fact worth nearly three times that sum at the end of 1957. I feel no doubt that the restraint is repugnant and void. (at p225)
13. I should perhaps add that I have treated the words "to so deal with the fee simple" in cl. 4 of the deed as referring to all the modes of alienation mentioned in cl. 3. I think a narrower interpretation is more natural, and on that interpretation the case of the appellant is, of course, stronger. (at p225)
14. The appeal should, in my opinion, be allowed with costs. The order of the Supreme Court should be discharged. In lieu thereof each of the three questions asked by the case stated should be answered in the negative, and, in accordance with the agreement of the parties, the action should be dismissed with costs. The appellant should have her costs of the appeal to the Full Court of the Supreme Court. (at p225)
KITTO J. I need not repeat the facts. The contention of the defendant that the option clause is void for uncertainty depends upon that portion of cl. 5 of the contract which provides that the price shall be 3,157 pounds 4s. 0d. "to which shall be added the value of all additions and improvements to the said property since the date of purchase by the Grantor" (who is the appellant in this appeal) "(such value to be taken as at date of exercise of this option) and from which shall be subtracted the value of all deficiencies of chattel property and a reasonable sum to cover depreciation of all buildings and other property on the land". (at p225)
2. The provisions thus made for additions to and subtractions from the 3,157 pounds 4s.0d. may well prove to be difficult of application, but their meaning does not seem to me to be uncertain, and that is what matters. If one asks what was the value, as at the relevant date, of the additions and improvements referred to, or what was a reasonable sum to cover depreciation to buildings and other property on the land, one is only asking questions such as the courts are answering with certainty and finality every day of the week. (at p226)
3. The additions and improvements, and equally the deficiencies of chattel property, are capable of being ascertained when the time arrives; and their value is then to be ascertained in the light of all the facts and circumstances. There is in the books substantial authority to support the proposition that a contract of sale is not incomplete for want of certainty as to price because its only provision on the subject is a stipulation for a "fair price": Halsbury's Laws of England, 2nd ed., vol. 31, p. 352, par. 394, or "the fair value": op. cit. vol. 29, p. 242, par. 324, or "a fair valuation": Milnes v. Gery [1807] EngR 448; (1807) 14 Ves Jun 400, at p 407 [1807] EngR 448; (33 ER 574, at p 577) ; Wilks v. Davis (1817) 3 Mer 507, at p 509 (36 ER 195, at p 196) ; Morgan v. Milman (1853) 3 De G M & G 24, at p 34 (43 ER 10, at p 14) , or the "real value" of the subject-matter, or what it is "reasonably worth": Hoadly v. M'Laine [1834] EngR 652; (1834) 10 Bing 482, at p 487 [1834] EngR 652; (131 ER 982, at p 984) . If the property is not of a kind for which there is a current and readily ascertainable market price, the task of stating its value may not be easy, and it may have to be performed in the face of widely differing opinions. But anyone who is called upon to state the value, even of property such as we are here considering, which no doubt possesses "some unusual and, it may be, unique features," knows what it is that he is required to do. In the language of the Privy Council, he is to say what a willing vendor might reasonably expect to obtain for the property from a willing purchaser: cf. Vyricherla Narayana Gajapatiraju v. The Revenue Divisional Officer, Vizagapatam (1939) AC 302, at p 313 . The standard he is to apply is therefore the standard of reasonableness; and the law has never, so far as I am aware, found that standard too vague to apply as a criterion of rights, duties and liabilities. (at p226)
4. Similarly, the provision as to "a reasonable sum to cover depreciation" appears to me to be definite in meaning and capable of being rendered certain in application: cf. Re Blakesley and Beswick [1863] EngR 487; (1863) 32 Beav 379 (55 ER 148) ("reasonable costs"). See also King v. Ivanhoe Gold Corporation Limited [1908] HCA 75; (1908) 7 CLR 617 , and Broome v. Speak (1903) 1 Ch 586, at p 600 . There seems to me to be no more uncertainty in a stipulation for a reasonable allowance for depreciation than there is in a provision (express or implied) as to a reasonable time, or in a provision for a reasonable price such as may be implied under the Sale of Goods Act, or under the terms of a special contract like that which was considered in Foley v. Classique Coaches Ltd. (1934) 2 KB 1 , or in the provision in which implications were made importing consideration of what was just and reasonable in Hillas and Co. Ltd. v. Arcos Ltd. [1932] UKHL 2; (1932) 147 LT 503 , to which Lord Wright referred in Scammell, (G.) and Nephew Ltd. v. Ouston (H. C. and J. G.) (1941) AC 251, at pp 272, 273 . (at p227)
5. It is worth repeating what was said by Bowen L.J. in a well-known passage in Davies v. Davies (1887) 36 Ch D 359 : "There is many a contract for example which, instead of fixing the particular time for payment, provides that the time is to be fixed by what is reasonable in the trade or in the business. In those cases you introduce the consideration of what measure reason will apply, because the measure which reason will apply tends towards certainty, and therefore enables you to make up for the absence of distinctness on the part of the contract by reference to a standard which the parties had in their minds, though they did not express it on paper, namely, the standard of reason" (1887) 36 Ch D at pp 392, 393, . Is, then, an agreement to be considered too uncertain for enforcement as a contract, simply because some matter with which it deals is provided for by explicit instead of implicit reference to the standard of reason? In my opinion, it is not. I have not found in the books any case in which an agreement for the sale of property at its value, or an agreement a term of which has been expressed by reference to reasonableness, has been held on that account to be too uncertain to constitute a binding contract. (at p227)
6. I do not regard as correct the suggestion that stipulations such as those here in question reserve their subject-matter for future agreement, with the result that a concluded contract has not been made. The parties have agreed upon every matter which they intend their contract to cover. Whatever is agreed upon by reference to reasonableness is covered by a final consensus ad idem, and if a subsequent agreement be made substituting specific amounts, or times, or whatever it may be, for those which in the first instance were agreed upon by description only, that will take effect as a variation. But the fact that there is room for such a subsequent agreement, and even a business need for such an agreement as an alternative to litigation, does not argue that the description is uncertain in meaning, or that there is no concluded contract. Lord Wright's words in relation to agreements stipulating for reasonable times may be recalled: "Such matters may require, as the performance of the contract proceeds, some consultation and even concessions between the sellers and the buyers, but there is no uncertainty involved because, if there eventually emerge differences between the parties, the standard of what is reasonable can, in the last resort, be applied by the law, which thus by ascertaining exact dates makes precise what the parties in the contract have deliberately left undefined. Hence in view of this legal machinery id certum est quod certum reddi potest.": Hillas and Co. Ltd. v. Arcos Ltd. (1932) 147 LT, at p 515 . (at p228)
7. The next question to consider is whether cl. 3 is void by reason of the restraint which it purports to place upon alienation. If the clause be considered with the definitions appearing in the statement of the parties but in isolation from cll. 4, 5 and 6, it doubtless appears to forbid absolutely any transfer, assignment, setting over or leasing of any part of the property (otherwise than by way of mortgage to a banking institution) by the appellant or her executors or administrators (it cannot mean to include her assigns) without the consent in writing of the respondent or his executors or administrators (again, "assigns" cannot apply). But if cll. 3, 4, 5 and 6 be read together, it seems to me, as it seemed to the learned judges of the Supreme Court, that the stipulation for the written consent of the respondent is nothing but a means of ensuring that (to put it broadly) no third party shall acquire an interest in the property or any part of it unless the respondent has first been given an opportunity of re-purchasing it. It would be, to my mind, an improbable intention that if the appellant should wish to deal with the property she should give the respondent a month's notice, but that, although thereupon he should have an option of purchase, in the event of his not exercising the option the situation should be exactly as it was before the giving of the notice: he still might give or withhold his consent as he might choose. Several indications point in the opposite direction. In the first place, the subject of the month's notice is an "intention" to deal with the land, and not a mere desire to do so. In the second place, the option is described as a "first" option, and the description is hardly to be accounted for except on the view that the option is a right of pre-emption, a right to purchase ahead of, so as to intercept and preclude, a transaction which otherwise there would be nothing to prevent. And finally, the purpose of giving the month's notice is stated in cl. 4 to be the purpose of "obtaining" the written consent mentioned in cl. 3, and not merely asking for it. The appellant does not need any provision of the deed to enable her to ask for it: she may do so on a month's notice, or on no notice at all. But for the purpose of "obtaining" it, she must give the respondent the notice which will give rise to the option to buy back the property. The inference seems to me to be clear, that if the respondent does not exercise the option, the appellant will achieve her purpose of obtaining the consent, the respondent being then bound to give it. (at p229)
8. On this construction of the deed, there can be no valid objection to cl. 3 on the ground that it prohibits alienation. Whether the clause would be void as against public policy if it were construed as imposing an unqualified prohibition upon alienation by the appellant or her representatives without the consent of the respondent or his representatives, is a question upon which I express no opinion. (at p229)
9. In the result, I think that the judgment of the Supreme Court was correct, and that the appeal should be dismissed. (at p229)
MENZIES J. The parties to these proceedings stated for the opinion of the Supreme Court of Queensland the questions whether a deed executed by them and dated 15th July 1949 imposed upon the defendant (the present appellant) any legal obligation: "(a) to obtain the consent of the plaintiff to the transactions referred to in paragraphs 5, 6 and 7 hereof; (b) to give to the plaintiff any notice of her intention to enter into the said transaction; (c) to give to the plaintiff any option of purchasing the said land or any improvements thereon." It was agreed that if the Court should answer the questions affirmatively, damages should be assessed; and if negatively, there should be judgment for the defendant. The trial judge answered the questions affirmatively and the appeal to the Full Court was dismissed. (at p229)
2. The deed referred to was dated 15th July 1949, but it was apparently executed on 25th July 1949 and was collateral with an agreement dated 15th July 1949 whereby the plaintiff sold the defendant an island off the coast of Queensland together with not only the erections and buildings thereon, but certain fittings, household goods, chattels and effects, for a price of 3,157 pounds 4s. 0d. The agreement contained this provision: "These presents are entered into on a walk-in walk-out basis and includes all property of whatever description on the said lands save and except the personal effects of the vendor." There was, it seems, no inventory. The collateral deed contained the following provisions: "3. The Grantor" (who is the purchaser under the agreement) "shall not at any time transfer assign set over or lease any part of the said lands (other than by way of mortgage to a banking institution) without the consent in writing of the Grantee first obtained. 4. For the purpose of obtaining the consent of the Grantee in the preceding clause mentioned the Grantor shall give to the Grantee one calendar month's notice in writing of her intention to so deal with the said fee simple or any part thereof and during the currency of that notice the Grantor doth hereby give and grant to the Grantee the first option of purchasing the said fee simple and all improvements thereon on the terms and conditions herein contained. 5. The purchase price relating to such option shall be the sum of Three thousand one hundred and fiftyseven pounds four shillings (3157 pounds 4s. 0d.) to which shall be added the value of all additions and improvements to the said property since date of purchase by the Grantor (such value to be taken as at date of exercise of this option) and from which shall be subtracted the value of all deficiencies of chattel property and a reasonable sum to cover depreciation of all buildings and other property on the land. 6. This option shall remain open for exercise by the Grantee at all times for a period of one month from the date of giving of the notice by the Grantor of her intention to deal with the said fee simple and this option may be exercised by the Grantee by giving notice to the Grantor or leaving such notice for her at the office of Messrs. J. J. Bell & Bell Solicitors of Tully or their successors in office." (at p230)
3. The action was for damages for breach of covenant in that on 29th November 1957 the defendant sold the island with the erections and improvements thereon and the chattels set out in an inventory to K. C. and Cynthia Druitt for 8,500 pounds, and did so without the consent in writing of the plaintiff and without giving the notice provided for by cl. 4 of the deed. These are the transactions referred to in the first question in the case stated. (at p230)
4. Before going further, it is to be observed that the parties regarded the questions in the case stated as a group to be answered affirmatively or negatively and apparently did not contemplate that one question might be answered differently from the others, assuming, no doubt, that unless the option given by cll. 4, 5 and 6 of the deed were to be exercised by the plaintiff, consent in writing to the transaction that the defendant proposed, would be forthcoming under cll. 3 and 4. It is no doubt attractive to read the clauses as a whole as doing no more than prohibiting alienation without the plaintiff's consent in writing merely as a preliminary to affording the plaintiff an opportunity to exercise the option, so that if the option were not exercised, consent must be given. Despite this, however, the use of the words "at all times" in cl. 6 does, I think, compel a construction that would permit the option to arise again and again, so that by means of a refusal of consent without exercise of the option, a sale proposed by the defendant would be stopped so that the plaintiff could exercise the option at a later date if again the defendant proposed any alienation of the land. The conclusion that I reject is one that would give the plaintiff but one chance to exercise the option conferred by the deed. Clause 3 could, therefore, as a matter of construction, have an operation that is not dependent upon the effectiveness of the option provisions. (at p231)
5. The attack that was made upon cll. 3 to 6 was that by reason of uncertainty, they could not constitute a completed agreement. I agree with this contention so far as the option provisions are concerned, because I do not think that the sums to be added to or subtracted from the sum certain - i.e. 3,157 pounds 4s. 0d. - are susceptible of calculation or other determination without further agreement. Notwithstanding the absence of an inventory, I assume that at any time when the option arose, it could be ascertained what had been sold, perhaps years before, on 15th July 1949, so that the additions and deficiencies referred to in cl. 5 could be ascertained. The task of valuing additions at the date of the exercise of the option and of valuing deficiencies at some unspecified time without some further agreement would, I am disposed to think, be impracticable, but however that may be, the ascertainment of "a reasonable sum to cover depreciation of all buildings and other property on the land", which presumably covers buildings and other property upon the land both on 15th July 1949 and at the date of the exercise of the option, whether or not they had been improved, would seem to me quite impossible without further agreement. The price could not be determined without the deduction of depreciation specified with no greater particularity than "a reasonable sum." There are many methods of calculating depreciation, each one probably leading to a different result in a particular case and each result would no doubt be "reasonable." How then is the deduction to be fixed? Only, it would seem, by further agreement or by authoritative determination. No means of authoritative determination is provided by the agreement, and the necessity for further agreement reveals that there is no binding contract. It has been argued that a court will always itself determine what is reasonable between the parties. That a court could do this in a proper case is not in doubt, but here the parties were both concerned and obliged to fix their price before there could be any resort to a court, and they cannot agree upon a figure subject to a deduction to be fixed by the court. Moreover, I do not think that an agreement to be reasonable would always result in a binding contract even where the contract is one for the sale of goods at a reasonable price. (at p231)
6. The starting point in considering this must be that there can be no binding contract of sale without agreement as to price. This is in accord with what Lord Warrington of Clyffe described in May and Butcher Ltd. v. The King (1934) 2 KB 17 as "a well known and elementary principle of the law of contract, which is that, unless the essential terms of the contract are agreed upon, there is no binding and enforceable obligation" (1934) 2 KB, at p 22 . Where, however, property has been delivered or work accepted, a person who has taken what he requested is bound to pay a reasonable price for what he has received, and the various indebitatus counts lie for the recovery of such sums because the consideration has been executed. Furthermore, before the Sale of Goods Act 1893, it was decided in Hoadly v. M'Laine [1834] EngR 652; (1834) 10 Bing 482 (131 ER 982) that where a contract is entered into for the fabrication of goods (there, a carriage) without any agreement as to price, the memorandum of the contract required by the Statute of Frauds is sufficient without specification of the price, because it is to be implied that the price is what the goods shall be found to be reasonably worth. Tindal C.J. said: "It is clear that a contract for the sale of a commodity, in which the price is left uncertain, is, in law, a contract for what the goods shall be found to be reasonably worth" (1834) 10 Bing, at p 487 (131 ER, at p 984) . It would seem that if this statement were to be accepted according to the full width of the words, May and Butcher Ltd. v. The King (1934) 2 KB 17 would have been differently decided, because in that case there was no doubt that the price was left uncertain; but presumably the Lord Chief Justice meant no more than that where the contract is silent as to price, the value is to be taken as the price. Later, in Valpy v. Gibson [1847] EngR 697; (1847) 4 CB 837 (136 ER 737) , Wilde C.J., speaking for a court consisting of Coltman, Maule and Cresswell JJ. and himself, said: "With regard to the terms of the contract not having been completely agreed upon - it appears that the price was agreed on, but that the mode and time of payment were not at first specified. But the omission of the particular mode or time of payment, or even of the price itself, does not necessarily invalidate a contract of sale. Goods may be sold, and frequently are sold, when it is the intention of the parties to bind themselves by a contract which does not specify the price or the mode of payment, leaving them to be settled by some future agreement, or to be determined by what is reasonable under the circumstances" (1847) 4 CB, at p 864 (136 ER, at p 749) . This was said in a case where goods had been delivered. Then, in Joyce v. Swann [1864] EngR 477; (1864) 17 CB (NS) 84 (144 ER 34) - a case where goods had been accepted - Erle C.J. told the jury that "in general, it is essential to a bargain for the sale of goods, that the price should be agreed upon, but that, nevertheless, it was perfectly competent to a vendor and vendee to be upon such confidential terms with one another as to contract for a sale of goods leaving the price to be settled thereafter; and that it was not a necessary condition to the passing of the property that the price should be definitively agreed upon" (1864) 17 CB (NS), at p 93 (144 ER, at p 38) . Upon the return of a rule to enter a non-suit on the ground of misdirection, Willes J. said (1864) 17 CB (NS), at p 102 (144 ER, at pp 41, 42) : "As to the alleged misdirection, I apprehend the Lord Chief Justice was quite correct in saying that the property in the guano might pass although the price was not agreed on. Of course he did not mean that the property might pass notwithstanding the contract was not complete as to price and other matters. That was not the proposition which he laid down. All that he meant was, that, though the price was not mentioned, the law would infer from the circumstances that the price should be a reasonable price, and that the property in the goods might equally pass as if the price had been fixed in moneys numbered by the contract itself. That is perfectly good law. A contract which names no price may yet be a sufficient contract to satisfy the 17th section of the Statute of Frauds. Hoadly v. M'Laine [1834] EngR 652; (1834) 10 Bing 482 (131 ER 982) The price not being named, it must be assumed that the parties intended a reasonable price. That being so, the contract does in effect provide for a price: and the rest of the consequences follow". (at p233)
7. Two comments may be made upon the foregoing statements. The first is in the main they were made in cases where goods had been accepted, and even in Hoadly v. M'laine [1834] EngR 652; (1834) 10 Bing 482 (131 ER 982) , which has been regarded as applying to executory contracts the rule previously established in cases where the consideration had been executed, the carriage that the defendant was sued for refusing to accept had been built by the plaintiff to his order, and it would seem that an indebitatus count for work done could have been sustained; indeed, Park J. said: "Putting the two writings together" (i.e., the original order for the carriage and a letter: "Send me my bill. I shall bring out the carriage immediately.") "it is impossible to say he did not undertake to pay on a quantum meruit" (1834) 10 Bing at p 489 (131 ER, at p 984) . The second comment is that if and in so far as it is stated that the price of goods the subject of an executory contract can be settled by future agreement, what has been said must be read in the light of the principle so clearly stated in May and Butcher Ltd. v. The King (1934) 2 KB 17 , for example per Viscount Dunedin: "To be a good contract there must be a concluded bargain, and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties" (1934) 2 KB, at p 21 . (at p234)
8. When, therefore, the Sale of Goods Act was passed in 1893 and it was provided by s. 8 (2) that when the price of goods is not determined in accordance with s. 8 (1), "the buyer must pay a reasonable price", this does not seem to me to have been a clear adoption of what was said in Hoadly v. M'Laine [1834] EngR 652; (1834) 10 Bing 482 (131 ER 982) , but rather a recognition of the clearly established rule that a man who, without any agreement as to price, accepts goods that he has ordered, is bound to pay a reasonable price for them. It is to be observed that the section does not say that where no price is fixed by the contract, an agreement to pay a reasonable price is to be implied; it says rather that where there is no agreement as to price, "the buyer must pay a reasonable price", which, seemingly, would apply strictly only when a price had become payable - e.g., after property is passed to the buyer - and would not cover cases where a breach of an executory contract is alleged. In such a case, no price has to be paid. In this connexion, it is to be noted that in Foley v. Classique Coaches Ltd. (1934) 2 KB 1 , the contract there in question was upheld, not merely because it was implied that the petrol would be sold at a reasonable price, but because it was implied further that if any dispute arose as to what was a reasonable price, it was to be determined by arbitration. Perhaps the implication of a promise to pay a reasonable price for petrol (a commodity for which there is an established market) would of itself have been sufficient, but the case was decided on the ground that the contract itself provided for a means whereby in cases of difference the reasonable price could be fixed. (at p234)
9. This review of the authorities most favourable to the contention that where no price is fixed the law implies that the price will be what the goods are reasonably worth, does not justify the proposition that in all cases a promise to pay a reasonable price or a reasonable sum is sufficiently certain to give an agreement for sale legal efficacy: see Way v. Latilla (1937) 3 All ER 759 . Where there is an established market for the commodity the subject of a bargain, a promise to pay the fair value would probably be sufficiently certain: and this is, I think, the sense of Lord Tomlin's statement in Hillas and Co. Ltd. v. Arcos Ltd. [1932] UKHL 2; (1932) 147 LT 503 : "That" (i.e. "of fair specification") "is something which if the parties fail to agree can be ascertained just as much as the fair value of a property" (1932) 147 LT, at p 512 . Where, however, the property is of a special character, different considerations may apply, and I am not satisfied, for instance, that there could be either specific performance or damages in the event of a failure to deliver a picture disputedly attributed to Vermeer which was the subject of an agreement to sell at a reasonable price. If it had to, a court could, of course, decide the value of such a picture, but to do so it would have to hear and weigh the evidence for and against authenticity as well as to take into consideration evidence of value. The very process that such a determination would involve would seem to indicate that an agreement to buy the picture for a reasonable price would be no more than an agreement to pay what the court should fix as its value. I am inclined to think such a bargain would be no contract and that before delivery a court would not undertake its enforcement. (at p235)
10. The rule, so far as it exists, that a contract for the sale of goods at a reasonable price is not so uncertain as to be unenforceable is not, however, applicable to the sale of a particular piece of land, and on this point I desire to do no more than express my agreement with what has been written by the Chief Justice and Fullagar J. (at p235)
11. My conclusion upon this part of the case is that the agreement not having itself provided a means whereby the price to be paid pursuant to cl. 5 can be calculated or otherwise determined, there is no effective option. (at p235)
12. If the defendant's contract with the Druitts is being performed according to its terms, the defendant has already given possession, signed a transfer of the land, and deposited it with the contract and the appropriate certificate of title at the Bank of New South Wales, Cairns, to be held in escrow. I am not at all clear what the words "assign" or "set over" in cl. 3 of the deed mean, but they probably mean something less than the completion of the transfer of the land, and what the defendant has already done would seem to fall within what is prohibited without the consent in writing of the plaintiff, so that there has been a breach of cl. 3 of the deed according to its terms. It follows that there has been a breach of covenant for which damages would have to be assessed if cl. 3 is valid. Standing by itself, cl. 3 is certain enough and it seems to me that it is valid unless it is void as an unlawful restraint upon alienation. I agree with the Chief Justice and Fullagar J. that cl. 3 is an unlawful restraint upon alienation, and to the reasons which they give for treating a covenant in restraint of alienation in the same way as a condition in restraint of alienation, I wish to add nothing beyond the observation that it is well settled that a covenant in general restraint of marriage is void as contrary to the public interest in just the same way as is a condition with that effect, and I think that it is in accordance with sound principle to regard general restraints upon alienation, whether by condition or covenant, similarly to general restraints upon marriage. (at p236)
13. Because of the conclusion I have already expressed about the ineffectiveness of the option clauses, it is not necessary for me to consider whether the invalidity of cl. 3, with the consequence that the stated purpose for giving a notice as provided by cl. 4 disappears, would of itself deprive the option clauses of any effective operation. (at p236)
14. I think that the appeal should be allowed and the questions answered in the negative. (at p236)
WINDEYER J. Dyer's report of the case of Mervyn v. Lyds [1794] EngR 1118; (1554) 1 Dyer 90a (73 ER 195) in 1554 contains this: "If I bargain with you that I will give you for your land as much as it is reasonably worth, this is void for default of certainty; but if the judging of this be referred to a third person, and he adjudge it then it is good" (1554) 1 Dyer, at p 91a (73 ER, at p 197) . If this be now the law, the defendant in this action might rely upon it with some assurance. But is it? I think not. The law has come a long way since the time of Queen Mary. Sir William Grant in Milnes v. Gery [1807] EngR 448; (1807) 14 Ves Jun 400 (33 ER 574) said: "Upon the principle, that a fixed price was an essential ingredient in a contract of sale, the ancient Roman lawyers doubted, whether an agreement, that did not settle the price, was at all binding. Justinian's Institutes and the Code state that doubt; and resolve it by declaring, that such an agreement should be valid and complete, when and if the party, to whom it was referred, should fix the price: otherwise it should be totally in-operative: 'quasi nullo Pretio Statuto'; and such clearly is the Law of England" (1807) 14 Ves Jun, at pp 408, 409 (33 ER, at p 577) . But he said too: "The case of an agreement to sell at a fair valuation is essentially different. . . . In that case no particular means of ascertaining the value are pointed out: there is nothing therefore, precluding the Court from adopting any means, adapted to that purpose" (1807) 14 Ves Jun, at p 407 (33 ER, at p 577) . And in Morgan v. Milman (1953) 3 De GM & G 24 (43 ER 10) , Lord Cranworth, after stating that if the parties have stipulated that the price of land shall be ascertained in a particular way and it is not so ascertained the Court cannot interfere and direct that it be ascertained in some other way, added : "if, indeed, there had been an agreement that the price should be that which was to be ascertained upon a fair valuation, then the Court might interfere" (1853) 3 De G M & G, at p 34 (43 ER, at p 14) . And in Wilks v. Davis (1817) 3 Mer 507 (36 ER 195) , Lord Eldon said : "There are cases which determine that, if the parties are agreed as to a valuation, but have not appointed any persons to make the valuation, the Court will itself interfere, so as to ascertain the value, in order to direct a specific performance" (1817) 3 Mer, at p 509 (36 ER, at p 196) . These statements are dicta only. But on the authority of them and other dicta, the text-books say that an agreement to sell land at a fair valuation is a concluded and valid contract : see Sugden, Vendors and Purchasers, 14th ed. (1862) p. 287 ; Clerke & Humphrey, Sales of Land, pp. 38, 39 ; Dart, Vendors and Purchasers, 8th ed. (1929), p. 222 ; Williams, Vendors and Purchasers, 4th ed. (1936), vol. 1, p. 4 ; Williams, Contract for Sale and Title to Land, 2nd ed. (1957), p. 60 ; Seaborne, Vendors and Purchasers, 9th ed. (1926), p. 8 ; Halsbury, Laws of England, 3rd ed., vol. 8, pp. 103, 196 (note p.) ; Encyclopedia of Forms & Precedents, vol. 14, p. 26 ; and somewhat less definitely Webster, Conditions of Sale, 3rd ed. (1907), pp. 179, 453 ; Fry, Specific Performance, 6th ed. (1921), pp. 169-171. I consider that the text-books are correct ; and that this is not inconsistent with the fundamental doctrine that "the price is of the essence of a contract of sale, and the Court cannot make a contract, where there is none" (Gourlay v. Somerset [1815] EngR 922; (1815) 19 Ves Jun 429, at p 431 [1815] EngR 922; (34 ER 576, at p 577) ). An offer to sell at a fair value might, of course, be no more than an offer to negotiate as to a price. But, if parties, intending to make a concluded contract of sale, agree that the sale shall be at a fair valuation of the property sold, they have fixed the price by reference to an ascertainable fact - the fair value. The value of any property, except commodities commonly bought and sold and having a current market price, may, in one sense, be always a matter of opinion unless there be some fixed or standard price ; so that subjective considerations necessarily intrude into questions of value. Yet the law regards value as an ascertainable fact, and land no less than other forms of property as susceptible of valuation. The valuation of land and improvements upon land is, in fact, commonly undertaken for a variety of purposes, for example, for rating, or to determine compensation on a compulsory acquisition, or for trustees proposing to invest funds upon mortgage. I do not find any logical difficulty in the idea of a reasonable price for land in a system of law that by statute asserts that there is a reasonable price for goods of all kinds - for a picture, a race-horse, or an ancient vase, for examples, just as much as for a loaf of bread or a pound of tea. Rare chattels are, I suppose, seldom bought and sold without the price being first fixed. But if such a sale does occur the difficulty of ascertaining a reasonable price cannot affect the validity of the contract : see White v. Schrafft (1948) 94 NH 467 ; 175 Am LR 242 - a decision of the Supreme Court of New Hampshire concerning sales of antiques. In the present case the subject matter of the contract is eighty-six acres of land in Queensland. It is, in fact, an island close off the shore. I do not think that, for that reason, it is incapable of valuation. Furthermore the purchase price upon the exercise of the option given by cl. 5 of the deed was to be the base price of 3,157 pounds 4s. 0d. adjusted in the manner stipulated ; so that all that would have to be arrived at by valuation would be the value of improvements that the defendant had made and of the additional chattels he had brought upon the land, less the value of chattels deficient and a reasonable sum to cover depreciation. That would not, in my view, create an insuperable difficulty. What is contemplated is a reasonable allowance for physical deterioration of the chattels sold and of the improvements, occurring between the date of the original sale and the exercise of the option to re-purchase. When an allowance has to be made for depreciation it must be calculated in whatever manner is reasonably appropriate in the circumstances (see Minister of State for the Navy v. Rae [1945] HCA 6; (1945) 70 CLR 339, at p 340 ). Subsidiary stipulations for the valuation of plant, timber, machinery or fixtures in a contract for sale of land at a fixed price have not, generally speaking, been regarded as rendering the contract uncertain (Jackson v. Jackson [1853] EngR 362; (1853) 1 Sm & G 184 (65 ER 80) ; Paris Chocolate Co. v. Crystal Palace Co. [1855] EngR 214; (1855) 3 Sm & G 119 (65 ER 588) ; Marsh v. Jones (1889) 40 Ch D 563 ). But I do not base my conclusion here solely upon that ; but upon the broader ground that an agreement for the sale of any property at its fair value, or reasonable price, is to-day a valid contract. If it be conceded that the fair value, in terms of money, of any property is an ascertainable objective fact, it seems to me to follow that the price in a contract of sale may be so expressed. Before entering upon my reasons for this view - in which I regret that I differ from other members of the Court - I would refer to one aspect of this case that seems to me to provide a special ground for upholding the validity of the deed here, if consistently with principle that can be done. (at p239)
2. The parties here changed their positions pursuant to an arrangement of which the provisions of the deed were a part. Lord Hatherley's remarks in Dinham v. Bradford (1869) LR 5 Ch 519 are in point. The Court there settled the price to be paid by one partner to purchase the share of the other upon a dissolution. Their agreement stipulated that the purchase price was to be determined by valuers, but an impasse had occurred. Lord Hatherley said : ". . . here is a man who had the whole benefit of the partnership in respect of which this agreement was made, and now he refuses to have the rest of the agreement performed, on account of the difficulty which has arisen. It is much more like the case of an estate sold, and the timber, on a part, to be taken at a valuation, the adjusting of matters of that sort forming part of the arrangement, but being by no means the substance of the agreement ; and in such cases the Court has found no difficulty. If the valuation cannot be made modo et forma, the Court will substitute itself for the arbitrators" (1869) LR 5 Ch, at p 523 . That statement was approved and followed by the Privy Council in Hordern v. Hordern (1910) AC 465, at p 474 . Here the parties intended to make a binding bargain. They clothed their agreement in a deed. The defendant got possession of and a title to the land pursuant to the contemporaneous agreement for sale. The deed was collateral to the contract of sale. They were each a part of the one bargain. In these circumstances it seems to me that the court should be slow to allow the defendant to escape from his covenant. Unless it be a contract of a kind that the law does not allow - a question to which I come later - it should be construed ut res magis valeat quam pereat (see Foley v. Classique Coaches Ltd. (1934) 2 KB 1 , per Maugham L.J. (1934) 2 KB, at p 13 ; York Air Conditioning and Refrigeration (A/sia) Pty. Ltd. v. The Commonwealth [1949] HCA 23; (1949) 80 CLR 11, at p 26 , and cases there referred to by Williams J.). In my view, it can be so construed. In Hillas and Co. Ltd. v. Arcos Ltd. [1932] UKHL 2; (1932) 147 LT 503 , Lord Tomlin, in whose judgment Lord Warrington and Lord Macmillan concurred, said of the expression "fair specification" in a commercial contract, "That is something which, if the parties fail to agree, can be ascertained just as much as the fair value of a property" (1932) 147 LT, at p 512 . His Lordship probably had personal rather than real property in mind ; nevertheless that case and other cases collected in the judgment of Williams J. in the York Air Conditioning and Refrigeration Case (1949) 80 CLR, at p 26 show how far the law has developed since the case that Dyer reported. (at p240)
3. Coming now to the main problem, the scope of the notion of reasonable price. The concepts of a reasonable price for goods sold, and of reasonable remuneration for services rendered, and indeed of contractual stipulations, express or implied, for reasonable time and reasonable notice, and also the right to a reasonable compensation for the use and occupation of land are all the products of similar developments. And all originally met with the same objections. In the argument before us an attempt was made to found something upon one distinction between sales of goods and sales of land. In a contract for the sale of goods, if there be no price fixed, the law provides that the buyer must pay a reasonable price. It is said that it is to be inferred that this was the intention of the parties. There is no similar rule in the case of a sale of land. If nothing be expressly stipulated as to the price there can be no concluded contract for the sale of land. The distinction is important. The rule in relation to goods was, as will appear later, developed by the common law courts to ensure that those who supplied consumable goods got payment. But in the Court of Chancery, where so much of the law of vendor and purchaser was made, civil law doctrines had a longer and a later influence. And Roman law insisted on a certum pretium as a necessary ingredient of a sale of anything, land or chattels. It knew nothing of the idea of a reasonable price (see Moyle, Contract of Sale in the Civil Law (1892), pp. 67-69; Buckland & McNair, Roman Law and Common Law, 2nd ed. (1936), pp. 280, 281). And the requirements of the Statute of Frauds tended to emphasize the need for a precise statement of the price in sales of land. But once admit, as English law does but the Civil law does not, that there is such a thing as a reasonable price then it seems to me that in our law the distinction between sales of lands and of chattels is not that an effective agreement can be made to sell a chattel for a reasonable price but an effective agreement to sell land cannot. It is, rather, that if persons would contract to sell land for a reasonable price they must do so expressly; whereas on a sale of chattels an obligation to pay a reasonable price is imposed by law when the parties are silent as to price. But surely the parties to a transaction concerning land can make an express agreement in the terms that in a sale of goods the law can infer that they made? And it is by such an inference or implication of what the parties intended should be the terms of their arrangement that the common law arrived at its rule in the case of chattels. The conclusion that seems to be warranted by logic is, I think, confirmed by history. (at p241)
4. Before the seventeenth century the common law gave no remedy to a tradesman who had delivered goods or rendered services in the expectation of payment, if he had not first made a bargain as to the price. This seems strange, especially in periods when the mediaeval notion of a just price still lingered. But it was well established that, unless a price had been fixed, an action of debt would not lie. Professor Ames in his papers on the History of Assumpsit in 2 Harvard Law Review 58, quotes a statement by Brian C.J. in Y.B. 12 Ed. IV 9 pl. 22: "If I bring cloth to a tailor to have a cloak made, if the price is not ascertained beforehand that I shall pay for the work, he shall not have an action against me". And as late as 1587 when a "gentleman of quality in the county" put up at an inn with his servants and his horses and did not pay the reckoning the innkeeper could not recover for he "was not at any price certain with the defendant nor was there ever any agreement betwixt them for the same": Young v. Ashburnham [1686] EngR 19; (1587) 3 Leon 161 (74 ER 606) . Surprisingly as it now seems, the Court of Chancery sometimes gave a remedy upon such personal demands: Spence, Equitable Jurisdiction (1846), vol. 1, pp. 693, 694. It was by the development of the action of assumpsit that the common law courts were able to give a remedy. A remarkable series of cases in Croke's Reports illustrates the development of the rule that an action would lie on an undertaking to pay a reasonable price for goods or services. These counts on promises to pay tantum quantum mereret with an averment quod meruit tantum, were at first upheld only against objections that such promises were unenforceable because uncertain, the same objection as is made here. But upheld they were, and they cover a wide variety of claims for a reasonable price for services rendered or goods supplied - by maltsters, carriers, smiths, tailors (Royle v. Bagshaw [1653] EngR 305; (1589) Cro Eliz 149 (78 ER 407) ; Rogers v. Head (1610) Cro Jac 262 (79 ER 226) ; Ive v. Chester (1620) Cro Jac 560 (79 ER 480) , where the claim failed only because the defendant was an infant): by a "professor of physic and surgery" who alleged he was promised tantum quantum mereret and that he "well deserved an hundred pounds" for curing a fistula, and had judgment (Shepherd v. Edwards (1616) Cro Jac 370 (79 ER 317) ); by a plaintiff who sued on a promise by the defendant to pay him a reasonable sum for procuring the assent of the lessor to an assignment of a lease (Hall v. Walland (1622) Cro Jac 618 (79 ER 528) ). In the last case, which arose on error from a judgment for the plaintiff upon a demurrer, it was again contended that the promise was uncertain and void - "Sed non allocatur: for such promise to pay tantum quantum meruerit is certain enough, and he shall make the demand what he deserves; and if he demand too much, the jury shall abridge it according to their discretion. . . . And of that opinion was all the Court". The practice there referred to became well established; for in 1628 in Rolte v. Sharp (1628) Cro Car 77 (79 ER 668) , in the Exchequer Chamber, it was said to be "the common course and always allowed". It is unnecessary to pursue the matter further. After Slade's Case [1598] EngR 39; (1602) 4 Co Rep 92b (76 ER 1074) , the way had been opened for the growth of contract law, with special assumpsit providing a remedy on express undertakings and indebitatus assumpsit as a remedy in place of the old action of debt. Actions quantum meruit or quantum valebat were forms of indebitatus assumpsit. Like the other common counts they could only be brought upon executed considerations and not upon merely executory promises, because indebitatus assumpsit lay only upon a promise to pay a precedent debt (Chitty on Pleading (1817), vol. I, p. 334). But long before Blackstone's time, it was well established that in executed contracts for the sale of goods a promise to pay quantum valebant was implied if there was no price agreed upon (see Hayward v. Davenport [1724] EngR 257; (1697) Comb 426 (90 ER 569) per Powel J.). It was for breach of this implied term that these actions were commonly brought (Blackstone, Book III, ch. 9). Quantum meruit and quantum valebat counts were, in effect, abolished in 1831, being superseded by the common indebitatus counts provided in the rules of Trinity Term of that year. But the law's implication that a reasonable price was payable in executed contracts for the sale of goods remained. There seems to be no case of an action for a reasonable price for land sold. But, for that matter, actions at law to recover the price of land were, to say the least, rare. Indebitatus assumpsit would, it is true, lie for the price of land sold and conveyed. But between vendor and purchaser conveyance and payment are generally contemporaneous; the deeds are not handed over until the purchase money is paid; and the deed of conveyance ordinarily contains an acknowledgment of the payment (see Bullen & Leake, Precedents of Pleading, 3rd ed. (1868), p. 246). Moreover assumpsit was a personal action, not originally available for matters that affected realty. This is, however, a complicated and debatable topic (Gibson v. Kirk [1841] EngR 38; (1841) 1 QB 850, at p 859 [1841] EngR 38; (113 ER 1357, at 1360) ; Chitty on Pleading (1817), vol. II, pp. 39-41). And actions for use and occupation (whether under 11 Geo. II c. 19 s. 14 or at common law) are really the product of the same need as actions quantum valebat - the need to make a man pay a proper price for what he has had. In Mason v. Welland (1685) Skinner 238, 242 [1728] EngR 54; (90 ER 109, 111) , this clearly appears ; and the claim quantum meruit for use and occupation was there upheld, despite the objection that the matter savoured of the realty, because "if this action does not lies, the party shall be without remedy which the law does not permit". But, once again, the way in which the law gave its remedy was by assumpsit ; and the way in which therefore it was commonly explained thereafter was by an implied contract (Birch v. Wright (1786) 1 TR 378, at p 387 (99 ER 1148, at p 1154) ; Churchward v. Ford [1857] EngR 561; (1857) 2 H & N 446 (157 ER 184) ). (at p243)
5. Undoubtedly, said Tindal C.J., delivering the judgment of the Common Pleas in Acebel v. Levy [1834] EngR 402; (1834) 10 Bing 376, at p 382 [1834] EngR 402; (131 ER 949, at p 952) , "the law makes that inference where the contract is executed by the acceptance of the goods by the defendants, in order to prevent the injustice of the defendant taking the goods without paying for them. . . . But it may be questionable whether the same reason applies to a case where the contract is executory only . . .". However, in the next term the Common Pleas held that the same implication of a reasonable price was applicable to an executory contract to make and build a carriage ; so that a memorandum that did not mention the price was sufficient for the Statute of Frauds. Tindal C.J. there said : "What is implied by law is as strong to bind the parties as if it were under their hand. This is a contract in which the parties are silent as to price, and therefore leave it to the law to ascertain what the commodity contracted for is reasonably worth" (Hoadly v. M'Laine [1834] EngR 652; (1834) 10 Bing 482, at pp 487, 488 [1834] EngR 652; (131 ER 982, at p 984) ). The law laid down in those cases was the foundation of the rule in the Sale of Goods Act. It applies to goods bargained and sold as well as to goods sold and delivered, to agreements for sale as well as to executed sales. It has been suggested that to admit this implied term into purely executory contracts was an extension of earlier doctrine and not supported by the common law. It is, it is said, not required by the reasons that brought it into executed contracts and that Hoadly v. M'Laine [1834] EngR 652; (1834) 10 Bing 482 (131 ER 982) was an unsure foundation for Sir Mackenzie Chalmers to build it on. This may be so. But, with all respect for those who think otherwise, I do not consider it is correct to say that there is no room in executory contracts for an implication of a reasonable price, or that an express term in an agreement for sale of goods that the consideration should be the payment of a reasonable price or a fair value would not at common law make a binding contract. The common law courts might, no doubt, have said that the right to payments quantum meruit or quantum valebat arose ex debito justitiae, instead of evolving it hesitantly and laboriously from a promise express or implied. They might have said that payment must be made for goods actually supplied or services rendered not on the basis that there was a sale at a price, but on the basis that there was no sale at all but an innominate contract, as Roman law said. But they did not. They proceeded by way of assumpsit. And in my view the way in which a procedural void was filled does determine the nature of the concepts that are at the root of the question here. The law does to-day approach the question from the starting point of promise, actual, implied or fictitious. In Street's, Foundations of Legal Liability (1906), vol. II, pp. 200, 201, the question is discussed and it is said that "this figment of legal reasoning, the implied promise exists solely for procedural purposes and is wholly aside from the real ground of liability". But, whether this be so or not, if an express promise be made in the same terms as a promise that by a procedural fiction is implied, it must have the same result. The earlier cases show that an express promise to pay a reasonable price for all kinds of goods and all kinds of services would suffice to make a valid contract. The actions were, no doubt, all brought upon contracts that had been executed. But the undertakings alleged were not made to support precedent debts. The promise preceded performance. It was alleged as a promise to pay a reasonable price when the contract was performed. In Shepherd v. Edwards (1616) Cro Jac 370 (79 ER 317) , this may not be clear until it be remembered that February 1603 was later than 26th March 1603, the legal year then beginning on 25th March not on 1st January : see 24 Geo. II c. 23. (at p244)
6. In Professor Corbin's work on Contracts ((1950-1) vol. 1, p. 99) it is said that "an agreement to pay a 'fair price' for land or goods or services may be regarded as identical with a promise to pay a 'reasonable price'. If such is the accepted meaning the agreement is sufficiently definite for enforcement". That, I think, is the law here as well as in the United States. "A reasonable price", said Tindal C.J., "means such a price as to the jury upon the trial of the cause, shall, under all the circumstances, decide to be reasonable". And sometimes it has been said that a contract for a reasonable sum is a contract to pay what a judge or a jury may award (see for example Thetford Corporation v. Tyler [1845] EngR 1243; (1845) 8 QB 95 (115 ER 810) ). But, although this may correctly, although elliptically, state what may turn out to be the result of the contract between the parties, it does not correctly describe that contract. That is made at once apparent by asking could a declaration in an action aver a promise by the defendant to pay such sum as a jury should award and assign as breach that such sum had not been paid. Obviously not. The true position is as stated by Willes J. in Joyce v. Swann [1864] EngR 477; (1864) 17 CBNS 84, at p 102 (144 ER 34, at p 42) in connexion with a sale of goods : "The price not being named, it must be assumed that the parties intended a reasonable price. That being so, the contract does in effect provide for a price : and the rest of the consequences follow". When parties agree to sell for a reasonable price or at a fair valuation they do not leave an essential term of their bargain for further agreement, so that their agreement is incomplete. It is complete. They have fixed the price by a measure that the law knows. If they disagree as to what sum of money fills that measure, a court will determine it, at common law by a jury. The way in which, for centuries now, the common law courts have done this and the form of the pleadings has been stated above. What a court of common law can determine by a jury a court of equity can ascertain, if necessary by a reference. In the case referred to above (York Air Conditioning and Refrigeration (A/sia) Pty. Ltd. v. The Commonwealth [1949] HCA 23; (1949) 80 CLR 11 ). Williams J. put it, accurately I respectfully think, as follows : "It is a case where the parties have agreed to leave something which has still to be determined, but the determination does not depend upon the agreement of the parties. The issue is one of fact capable of being determined by the Court if the parties disagree about it" (1949) 80 CLR, at p 29 . (at p245)
7. To sum up my opinion : The parties executed the deed intending it to be legally binding. They changed their positions in the belief that it was. They expressed their intention in language that was sufficiently certain to create legal obligations. For these reasons I agree with Philp J. and other members of the Supreme Court of Queensland that the provisions of cl. 5 of the deed for ascertaining the price payable if the option were exercised are valid. (at p245)
8. The next question was not considered by the Supreme Court. It was raised by the Chief Justice on the hearing of the appeal to this Court. It is whether cl. 3 of the deed may not be void as repugnant to the freeholder's right of alienation. The deed itself arouses doubts, for it recites that the parties had agreed that "the fee simple of the land should be held by the grantor subject to certain conditions and restrictions". And the difficult question raised depends upon matters that lie near the foundations of real property law. It is enough for me to say that if I construed the deed as the Chief Justice does I would respectfully agree that it is void for the fundamental reasons that he gives. I have, however, with much hesitation, come to a different conclusion as to the meaning of the deed. (at p246)
9. Clause 3 is in form an independent stipulation, a breach of which could sound in damages. But when the deed is read as a whole I think the purpose and operation of cl. 3 is governed by cll. 4, 5 and 6. The aim seems to me to have been to give the plaintiff a right of pre-emption or a first refusal in the event of the defendant intending to part with the property ; and to give him a month in which to decide whether to exercise this right. If he should not elect to re-purchase the property, then I think it is implicit that he must consent to the defendant dealing with the property as she wishes. It is true that his consent has to be in writing, perhaps so that no question of a continuing option could be raised against a purchaser. The matter is not clear. And as Jordan C.J. said in Mackay v. Wilson (1947) 47 SR (NSW) 315 , "an option is nearly always a ticklish thing" (1947) 47 SR (NSW), at p 318 . But that is the best I can make of this one. I agree in substance with my brother Kitto on this. (at p246)
10. I would dismiss the appeal. (at p246)
ORDER
Appeal allowed with costs. Order that the order of the Supreme Court be discharged and in lieu thereof it be ordered that the appeal to the Full Court of the Supreme Court from the order of Jeffriess J. be allowed with costs and the order of Jeffriess J. be discharged and that in lieu thereof it be ordered that each of the three questions in the case stated be answered No and that in accordance with the agreement of the parties the action be dismissed with costs.
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