at £10 per acre." This offer was accepted by T., who further stipulated in his acceptance that payment was to be made on delivery of title deeds and transfer. Before the appellant

3 CLR 420

could transfer the property, it was necessary for her to register a convey. ance made to her by her husband some time before. At the time the contract was made the purchaser was aware that the property in question was subject to a mortgage, and that the date of its redemption under a decree for foreclosure was fixed for 1st September. No definite time was fixed in the contract for payment of the purchase money, but the appellant was aware when the contract was made that the purchaser could not pay it until receipt by him of a remittance which might or might not arrive before 1st September. In an action for damages by the appellant for breach of contract by failure to pay the purchase money on or before 1st September

Held, affirming the decision of the Supreme Court of Western Australia, that under the contract T. was entitled to a reasonable time for its performance: and that under the circumstances no liability for breach arose from his failure to pay the purchase money before 1st September.

Held, further, that the terms in the contract as to payment and delivery of title-deeds and transfer were concurrent conditions: and that, as the time when such delivery and transfer could be made was a matter peculiarly within the knowledge of the appellant, notice by her that she was ready and willing to deliver the deeds and transfer was necessary before the purchaser could be guilty of a breach by non-payment Vyse v. Wakefield, 6 M. &W., 442; and Makin v. Watkinson, L.R. 6 Ex., 25, followed.

On 26th August T. wrote to the appellant to the effect that he could not complete the purchase till he received advices from England. After this date negotiations were continued, as upon the footing of an existing contract, until it became impossible for the appellant to perform it.

Held: That the appellant had lost any right to treat the letter of 26th August as a definite breach of contract.

Principles acted upon by Courts of Law and Equity respectively, in determin- ing the time for the performance of contracts, considered.

APPEAL from the Supreme Court of Western Australia.

Part of the following statement of the facts is taken from the judgment of Griffith C.J.:-

This was an appeal from a judgment of the Supreme Court of Western Australia dismissing an…

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 Canning v Temby

Details

AGLC: Canning v Temby [1905] HCA 45
Case: [1905] HCA 45
Decision Date: 26 October 1905

CaseChat Overview and Summary

In *Canning v Temby*, the High Court of Australia considered a dispute arising from a contract for the sale of land. The appellant, Canning, had agreed to purchase land from the respondent, Temby. The core of the disagreement concerned the performance of the contract, specifically the timing of payment and the delivery of title deeds.

The central legal issues before the Court were whether the respondent had breached the contract by failing to deliver the title deeds within a reasonable time, and whether the appellant had waived any right to immediate performance by his conduct. The Court also had to determine the nature of the conditions for payment and transfer of title, and whether they were concurrent conditions.

The Court held that the conditions of payment and transfer of title deeds were concurrent conditions, meaning that neither party was obliged to perform their part of the contract until the other was ready and willing to perform theirs. The Chief Justice, Griffith CJ, reasoned that the respondent was not in breach of contract for failing to deliver the title deeds until the appellant had tendered the full purchase price. The appellant's conduct, in making a partial payment and then demanding the deeds without tendering the balance, was found to indicate an intention to waive immediate performance of the concurrent conditions.

Consequently, the High Court found in favour of the respondent, Temby, determining that no breach of contract had occurred.

Orders