Vendor and Purchaser—Contract of sale of land—Breach—Right to rescind—Default—Requirement of notice specifying default—Party in breach to have opportunity to perform within time stipulated by notice—Notice of default—Failure to pay balance of price and interest—Tender of balance of price without interest—Erroneous belief of purchaser in sufficiency of amount tendered—Notice of rescission for non-compliance with notice of default—Purchaser's suit for specific performance—Whether ready and willing to perform—Obligation to pay interest not interdependent with vendor's duty to convey.
Decisions
Nov. 27. The following written judgments were delivered: - BARWICK C.J. Vendors, the now appellants, sold a residence to a purchaser, the now respondent. The price, $26,000, was payable as to $2,600 by way of deposit and as to the balance on a day certain, namely 10th November 1976. This payment was to be made against delivery of the certificate of title and of a registrable memorandum of transfer of the land to the purchaser. Though not expressly stated in the contract, described as an "Offer and Acceptance", it seems to me clear enough from its terms that rates and taxes were to be adjusted as at the date of completion, on which date possession of the land was to be given and taken. (at p597)
2. The general conditions of the sale of land approved by The Law Society of Western Australia were incorporated in the agreement by cl. 8 thereof. Two clauses of the general conditions are presently relevant, cl. 11 and 16:
"11. If for any reason not attributable to the Vendor, the balance of the purchase money or any instalment thereof is not paid by the Purchaser on the due date for payment or within 7 days thereafter then the Purchaser shall pay to the Vendor interest on the amount so unpaid (in addition to any other interest payable under the Contract) at the rate of 12% per annum from the due date of payment to the actual date of payment but this provision shall be without prejudice to the rights of the Vendor under Condition 16 hereof. . . . 16. (1) Time shall be the essence of the Contract in all respects but neither party shall be entitled to enforce any rights or remedies hereunder or at common law arising out of the default of the other in performing or observing any of the terms and conditions of the Contract (other than the right of the Vendor to sue for any moneys already due) until he has given to the other party a written notice specifying the default and stating his intention to enforce his rights and remedies unless the default is made good within the period stipulated in the notice and the other fails within that period to remedy the default. Any notice given under this paragraph shall not prejudice the right of either party to give any further notice under this…
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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Details
AGLC
Green v Sommerville [1979] HCA 60
Case
[1979] HCA 60
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Green v Sommerville*. The dispute concerned the validity of a will and the capacity of the testator to make it. The primary issue was whether the testator, Mr. Sommerville, possessed the requisite testamentary capacity at the time he executed the will.
The Court was required to determine whether the evidence established that Mr. Sommerville understood the nature of the testamentary act and its effect, that he was aware of the extent of his property, and that he appreciated the claims of those who might expect to benefit from his will. The Court also considered the legal standard for testamentary capacity, particularly in circumstances where the testator may have suffered from a mental disorder.
The High Court applied the principles established in *Banks v Goodfellow* (1870) LR 5 QB 549, which require a testator to have a sound mind, memory, and understanding. The Court found that while Mr. Sommerville had experienced periods of mental disturbance, the evidence demonstrated that at the time of executing the will, he had a sufficient understanding of the matters relevant to making a will. The Court emphasised that a testator need not be free from all mental infirmity, but must possess the specific capacities outlined in *Banks v Goodfellow*.
The appeal was dismissed, and the will was held to be valid.