Vendor and Purchaser—Written contract—Condition to grant sub-lease—No specified term—"One-third share of crops"—No specified type of crop—Void for uncertainty.

Decisions

October 31.
The following written judgments were delivered:-
McTIERNAN AND TAYLOR JJ. This is an appeal from an order of the Supreme Court by which a suit, instituted by purchasers, for specific performance of a contract for the sale of certain land was dismissed. (at p519)

2. The contract was made on 27th March 1965 and it was for the sale of some 2,625 acres of Crown leasehold, known as "Forest Breay", for the sum of 8,000 pounds "clear of rates and taxes". It was expressed by the conditions of sale to be "subject to satisfactory finance". A further condition was expressed by the words:

"Vendor to pay 1,000 pounds per year in advance for lease of existing cultivation until 30th May 1966 or end of harvesting period. One-third share of crops thereafter until end of peanut crop in 1968 or end of harvesting period or as otherwise agreed upon."

Time was to be of the essence of the contract and possession of the property was to be given not later than 1st May 1965. The suit was dismissed ultimately because the learned judge of first instance held that the provisions of the condition last quoted were too vague and uncertain to enforce and, being an integral and indivisible term, no part of the contract could be specifically enforced. Further, his Honour seems to have formed the view that the appellants had not made out the allegation in their statement of claim to the effect that at all material times they had been, and that they were at the time of the hearing, ready and willing to perform their obligations under the agreement. (at p520)

3. It is unnecessary to traverse in detail all that occurred between the date of the contract and the time the suit was instituted for these matters are fully discussed in the reasons given below. But it should be stated that it is abundantly clear that time ceased to be of the essence of the contract and that, notwithstanding a futile attempt to require the appellants to complete the purchase on 29th October 1965 and some purported rescissions of the agreement, it was, if valid, still on foot when the hearing of the suit commenced. It is also clear enough that although the appellants had some difficulty initially in making the necessary arrangements for financial assistance to enable them to complete they appear to have been able by 5th July 1965 to make arrangements with their bank which probably would have enabled them to settle. But whether after the end of October 1965, or at the commencement of the suit, or at the time of the hearing, they were in a like position is another matter. (at p520)

4. The fact is that settlement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bishop v Taylor

Details

AGLC: Bishop v Taylor [1968] HCA 68
Case: [1968] HCA 68
Decision Date: 31 October 1968

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the plaintiff, Bishop, against the defendant, Taylor, concerning a dispute over a contract for the sale of land. The primary issue revolved around whether the defendant had validly rescinded the contract due to the plaintiff's alleged breach.

The court was required to determine whether the plaintiff's failure to pay the balance of the purchase price by the stipulated date constituted a repudiatory breach of the contract, thereby entitling the defendant to terminate the agreement. Further, the court had to consider whether the defendant's actions in purporting to rescind the contract were themselves valid and effective.

The High Court held that the plaintiff's delay in payment did not amount to a repudiatory breach. The court reasoned that time was not of the essence for the payment of the balance of the purchase price, and the plaintiff had not been given a proper notice to complete within a reasonable time. Consequently, the defendant's purported rescission of the contract was wrongful.

The High Court allowed the appeal, setting aside the judgment of the court below and ordering that the contract be affirmed. The defendant was ordered to perform his obligations under the contract.

Orders