Besier v Foster

This case concerned an appeal from the Supreme Court of Tasmania regarding a claim for specific performance of a contract for the sale of land. The parties were Emma Phillipina Besier (the appellant vendor) and Francis Oliver Foster (the respondent purchaser). The dispute arose from a contractual term stipulating that the purchase price for the land would be £26,500 or such lesser sum as might be approved by the delegate of the Treasurer under the National Security (Economic Organization) Regulations.

The High Court was required to determine whether a consent to a sale at a lower price, obtained from a delegate of the Tasmanian Minister for Lands under the Land Sales Control Act 1948 (Tas.), satisfied the contractual requirement for approval by the delegate of the Treasurer under the Commonwealth's National Security (Economic Organization) Regulations. This involved considering the effect of the cessation of the Commonwealth regulations and the commencement of the Tasmanian Act, and whether the contractual wording was sufficiently flexible to encompass the State authority's approval.

The Court reasoned that the contractual clause specifically identified the "delegate of the Treasurer under the National Security (Economic Organization) Regulations" as the approving authority for a reduced purchase price. The Court found that no consent was given for the higher sum of £26,500, and the condition for a sale at a lower sum was not fulfilled because the approval was obtained from a State authority, not the specified Commonwealth delegate. The Court rejected the argument that the clause was intended to refer to the legal authority for the time being exercising land sales control, finding the wording to be definite and referring specifically to the authority established by the Commonwealth regulations.

The appeal was allowed, and the decision of the Supreme Court of Tasmania was reversed. The purchaser's action for specific performance failed on the ground that the contractual condition for a reduced price had not been met.