Mehmet v Benson

[1965] HCA 18

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Windeyer JJ.

MEHMET v. BENSON

(1965) 113 CLR 295

15 April 1965

Vendor and Purchaser

Vendor and Purchaser—Contract for sale of land—Time of the essence—Payment of price by instalment on stipulated dates—Interest payable on outstanding balance—Failure to pay instalment or interest on stipulated date or thereafter—Acceptance by vendor of part of purchase price after failure—Negotiations and discussions between parties—Notice by vendor purporting to rescind—Time in respect of payment of this instalment no longer of essence by date of notice—Notice ineffective—Effect of available act of bankruptcy by purchaser—Acquiescence in defective notice to complete—Non-payment of later instalments—Whether time of essence in respect of later instalments—Suit for specific performance by purchaser—Delay in commencing—Laches—Purchaser's readiness and willingness to perform—Relevant time for readiness and willingness—Form of pleading.

Decisions

1965, April 15.
The following written judgments were delivered:-
BARWICK C.J. This is an appeal by a purchaser who was plaintiff in a suit for specific performance of a contract for the sale of "an undivided moiety or half share as tenant in common with" the defendant vendor in a piece of land in the City of Wollongong, against a decree of the Supreme Court of New South Wales in Equity dismissing the claim for specific performance and granting relief against the forfeiture of some part but not of the whole of the moneys paid on account of purchase money: the defendant cross-appealed against the extent of the relief against forfeiture given by the decree. (at p299)

2. By the contract which was dated 20th December 1956, the plaintiff agreed to pay the price, some 16,000 pounds, by instalments, of which the first, a sum of 3,000 pounds, was to be paid on signature of the contract and by way of a deposit. A further instalment of 3,000 pounds was payable about two months later and thereafter the balance of the price was payable by six yearly instalments of 1,500 pounds each payable on a stated day of the year, with a final payment of 1,000 pounds on a stated day in 1964. Interest upon the unpaid balance of purchase money was payable quarterly at 7%, reducible to 6% for prompt payment. The plaintiff was said by the contract to attorn tenant to the defendant from week to week of the property sold until payment of the principal and interest as agreed, but the amount of the rental was not stipulated though it was said to be payable weekly and to be accepted in satisfaction of interest. (at p300)

3. At the time of the making of the contract the plaintiff was in fact occupying part of the premises erected upon the land as a tenant to the defendant. It was stipulated by the agreement that the plaintiff should occupy a further portion of the premises as such a tenant at an agreed rental and otherwise upon like terms to those applying to the existing occupation. (at p300)

4. By the express terms of the contract the plaintiff became…