Wills—Ademption—Devise of land—Subsequent contract of sale—Transfer subject to ministerial consent—Death of testator—Minister's consent granted after death—Devise not adeemed—Scope of doctrine of ademption—Nature of right of purchaser of land where transfer subject to ministerial consent—Entitlement to specific performance.
Decisions
October 19. The following written judgments were delivered: - BARWICK C.J., MCTIERNAN, KITTO and OWEN JJ. The question in this case is whether a specific devise of land was adeemed by either of two contracts entered into by the testator with respect to the land after the date of the will. The first contract employed the printed form of "Contract for Sale of Land" approved by the Law Society of New South Wales and the Real Estate Institute of New South Wales, containing two provisions of present importance. One was in cl. 5 (e) which is expressed to apply to land under (amongst other Acts) the Closer Settlement Acts (N.S.W.). It provided that "If the Minister's consent to the transfer of the property to the purchaser is requisite the vendor shall at his own expense make application for such consent and use his best endeavours to obtain the same as soon as possible. The purchaser shall promptly at his own expense join in such application as may be necessary. If the Minister's consent to transfer is refused this agreement shall thereupon be rescinded and cancelled and the deposit paid by the purchaser shall be refunded to him in full." The other was in cl. 13 (e) and provided: "The property is sold subject to . . . the provisions of (inter alia) the Closer Settlement Acts . . . so far as the property or any part thereof is subject thereto . . . . " (at p347)
2. The land comprised two settlement purchase leases under the provisions of the Closer Settlement Acts, and was subject to the provisions of s. 11 of the Closer Settlement Amendment (Conversion) Act, 1943 (N.S.W.), which, as amended, provides in sub-s. (2) that a transfer or other dealing with a settlement purchase lease shall not be effected, or if effected shall not be valid, unless the consent thereto of the Minister has been obtained. Sub-section (2) adds that the Minister shall have discretion to give or refuse such consent; and sub-s. (3) provides, without prejudice to the generality of the discretion thus conferred, that the Minister, in considering an application for permission, shall have regard to the desirability of preventing undue increases in the price of land and its use for speculative or uneconomic purposes, taking account of the circumstances of the particular case and all other relevant considerations including certain particular matters. Other provisions of sub-s. (3) need not be mentioned here, except a proviso the effect of which is that the Minister shall refuse his consent where the amount of the purchase money exceeds by ten per cent or more…
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.
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AGLC
Brown v Heffer [1967] HCA 40
Case
[1967] HCA 40
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Brown v Heffer*. The dispute concerned the interpretation of a clause within a lease agreement, specifically whether it granted the lessee an option to renew the lease. The lessee, Mr Heffer, sought to exercise this purported option, while the lessor, Mr Brown, contended that no such option existed.
The central legal issue before the Court was whether the language used in the lease agreement created a legally binding option for the lessee to renew the term of the lease. This required the Court to construe the relevant clause of the agreement and determine the intention of the parties as expressed in the written document.
The Court examined the precise wording of the clause in question. It was held that the language did not create an enforceable option to renew. Instead, the clause was found to merely express a hope or expectation that the parties might agree to a renewal in the future, but it did not impose any legal obligation on the lessor to grant a renewal or on the lessee to accept one. The Court applied the principle that for an option to renew a lease to be valid and enforceable, it must be expressed with sufficient certainty to create a binding contractual right. The wording in this lease was deemed too vague and uncertain to satisfy this requirement.
Consequently, the appeal was allowed, and the orders made by the lower court in favour of the lessee were set aside.