Vendor and purchaser—Agreement contemplating execution of formal contract—Possession to be given and instalment of purchase price to be paid upon execution of formal contract within specified period of acceptance of offer—Formal contract to contain such additional terms as vendor's solicitors "may reasonably require"—Formal contract not executed—Whether concluded contract. Contract—Vagueness and uncertainty—Agreement contemplating execution of formal contract containing such additional terms as vendor's solicitors "may reasonably require".
Decisions
September 20. The following written judgments were delivered:- WALSH J. The question raised by this appeal is whether or not a binding contract for the sale of certain land was made between the respondent and the appellant Robert Harold Godecke (Godecke). It is an appeal from an order made by the Supreme Court of Western Australia (Virtue J.) upon an application made by the respondent, pursuant to s. 138 of the Transfer of Land Act 1893 (W.A.), as amended, seeking an order for the removal of a caveat which had been lodged by the appellant R. H. Godecke Pty. Ltd. (the company), claiming an estate in fee simple as purchaser by virtue of a contract of sale. The appellants claim that this contract was made by means of the signing by Godecke and the respondent of the document which will presently be described. The respondent disputes that there was a binding contract. (at p633)
2. As the learned primary judge pointed out, an application to remove a caveat is not normally an appropriate proceeding in which to determine a disputed question as to the making of a contract for the sale of land or to determine in effect whether the party alleging the existence of such a contract is entitled to specific performance of it. But his Honour stated that the parties had assured him that the only questions to be determined were questions of law as to the proper construction of the offer and acceptance contained in the document and had agreed, subject to rights of appeal, to accept his decision and to be bound by it. In this Court learned counsel for the appellants stated that the question for decision was whether upon the proper construction of the offer and acceptance the parties intended to reach a concluded agreement or should be taken to have done no more than negotiate the terms and conditions of a proposed arrangement. Learned counsel for the respondent did not dissent from that formulation of the question and informed the Court that if it came to the conclusion that there was an enforceable contract it could be worked out by mutual agreement. I understand this to mean that the respondent agrees that if the document is construed as constituting a concluded agreement he will carry it out, notwithstanding that because of the lapse of time since it was made an exact compliance with some of its terms is no longer possible. (at p633)
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
Godecke v Kirwan [1973] HCA 38
Case
[1973] HCA 38
Decision Date
CaseChat Overview and Summary
In *Godecke v Kirwan*, the High Court of Australia considered a dispute between a vendor and a purchaser concerning a contract for the sale of land. The purchaser had entered into a contract to buy land from the vendor, which included a special condition allowing the purchaser to nominate a different purchaser within a specified period. The purchaser nominated a different entity, but the vendor refused to complete the sale, alleging the nomination was invalid.
The central legal issue before the High Court was whether the special condition in the contract, which permitted the purchaser to nominate a different purchaser, was void for uncertainty or as an unlawful restraint on alienation. The court also had to determine whether the nomination made by the original purchaser was effective in accordance with the terms of the contract.
The High Court held that the special condition was not void for uncertainty. The majority reasoned that the condition merely provided for the assignment of the purchaser's rights and obligations under the contract to a nominee, which was a common and permissible practice in conveyancing. The court found that the contract, read as a whole, sufficiently defined the essential terms of the agreement, and the identity of the ultimate purchaser was not an essential term at the time of contracting. The nomination was therefore valid, and the vendor was obliged to complete the sale with the nominated purchaser.