Vendor and Purchaser—Sale of business—Contract—Purchaser to be accepted as tenant by landlord of business premises—Time for performance of term—Specific performance at suit of vendor—Availability of remedy.
Decision
August 26. THE COURT delivered the following written judgment:- This is an appeal from a decree of Myers J. in a suit for specific performance. The defendant filed a counter-claim. By the decree the suit was dismissed and upon the counter-claim a declaration was made that the agreement which the plaintiff had sought to enforce had been rescinded. It was ordered that two sums, one of 200 pounds and the other of 800 pounds, paid by the defendant to the plaintiff be repaid by the plaintiff to the defendant. The plaintiff appeals to this Court from the decree both as to the claim and the counterclaim. (at p523)
2. The agreement, which was dated 19th March 1958, was for the sale and purchase of a laundry and dry-cleaning business carried on by the plaintiff appellant in Bondi. The business was in fact carried on in a lock-up shop of which the plaintiff was lessee under a lease for a term expiring on 31st October 1960 and thereafter for a weekly tenancy. There was a provision against assigning or subletting without leave to which a prohibition was added against taking a fine; see Conveyancing Act 1919-1954, s. 133B. The rent appears to be a low one but in the agreement of sale and purchase the leasehold term is not included among the parcels sold. There is moreover a clause expressly agreeing and declaring that no part of the consideration, which was 3,300 pounds, should be treated as a premium in the hands of the vendor (the plaintiff) for the purpose of s. 83A of the Income Tax and Social Services Contribution Assessment Act 1936-1952. It is not necessary to discuss the operation of s. 83A. It is enough to say that it is apparent that the omission of the lease from the parcels of the sale and the insertion of the clause relating to this section have a common purpose, namely, to prevent any part of the purchase money falling within the description of a premium on the assignment of a lease and so forming part of the assessable income of the vendor. To meet the difficulty in securing for the purchaser a continuation of the site for the business, a clause in the contract of sale (cl. 9) provided that the contract is subject to the purchaser being accepted as tenant of the premises in which the subject business is carried on by the landlord thereof. This clause would, so far as its terms go, be satisfied by the landlords of the shop accepting the defendant as a tenant, whatever might be the tenure and whatever the rent demanded. But when the circumstances in which it was to operate are…
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
Kennedy v Vercoe [1960] HCA 64
Case
[1960] HCA 64
Decision Date
CaseChat Overview and Summary
In *Kennedy v Vercoe*, the High Court of Australia considered a dispute between the appellant, Kennedy, and the respondent, Vercoe, concerning the interpretation of a will.
The central legal issue before the Court was whether a specific bequest of shares in a company, which had undergone a share split prior to the testator's death, should be construed as referring to the original number of shares or the increased number of shares resulting from the split. This required the Court to determine the testator's intention regarding the subject matter of the bequest in light of the company's subsequent actions.
The Court reasoned that the testator's intention, as expressed in the will, must be given effect. Applying established principles of testamentary construction, the Court held that the bequest should be interpreted to include the shares held by the testator at the time of his death, irrespective of any subsequent subdivision or split. The Court emphasised that the will spoke from the date of death, and the subject matter of the bequest was the testator's interest in the company, which had been altered in quantity but not in substance by the share split.