Vendor and Purchaser—Contract of sale—Stipulation as to time—Time not of the essence—Failure of purchaser to complete on due date—Notice to complete—Validity—Notice of rescission—Validity—Conveyancing Act, 1919 (N.S.W.), s. 13.* * Section 13 of the Conveyancing Act, 1919 (N.S.W.) provides: "Stipulations in contracts, as to time or otherwise, which would not before the commencement of this Act have been deemed to be or to have become of the essence of such contracts in a court of equity, shall receive in all courts the same construction and effect as they would have heretofore received in such court."
Decisions
May 14. The following written judgments were delivered:- BARWICK C.J. AND JACOBS J. On 4th May 1972 Mrs. Grace May Phillips agreed to sell to Neeta (Epping) Pty. Ltd. approximately 202 acres of land at Luddenham outside Sydney. The price was $190,000 payable as to $19,000 by way of deposit on the signing of the agreement, as to a further $56,000 in cash upon completion and as to the balance of $115,000 by way of first legal mortgage to the vendor or her nominee in the form annexed to the contract of sale. In the schedule to the contract dealing with the manner of payment of the balance of purchase price it is stated that completion of the contract should take place at or before 15th June 1972. The contract provided by cl. 12 that the property was sold with vacant possession and the vendor agreed to give the benefit of possession to the purchaser at the date of completion. At the date of contract one Tate was the lessee of the land under a registered lease expiring on 15th April 1976. Condition 2(w) of the lease provided: "That the lessor may at any time upon giving the lessee four weeks' previous notice in writing re-enter upon and retake possession of the demised premises whereupon the lessee shall be entitled to compensation at the rate of one hundred and twenty five dollars for each complete calendar month from the date of such entry to the 15th day of April, One thousand nine hundred and seventy six." (at p290)
2. Tate as the dairy farmer in possession was the holder of a registration certificate from the Dairy Industry Authority and thereby was entitled to supply to that authority the quota of milk referred to in cl. 26 which provided as follows: "The vendor warrants that there is a Milk Quota of 11,090 lbs. per week attaching to the property and agrees that she will do all things necessary to enable the purchaser to obtain the benefit of the said Milk Quota." (at p290)
3. After the exchange of contracts the vendor's solicitors wrote to Messrs Philip Malouf &Co., whom they understood to be the purchaser's solicitors, on 5th May 1972 furnishing particulars of the vendor's title pursuant to cl. 3…
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
Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18
Case
[1974] HCA 18
Decision Date
CaseChat Overview and Summary
Neeta (Epping) Pty Ltd and Phillips were the parties in this matter before the High Court of Australia. The dispute concerned the interpretation and enforceability of a restrictive covenant contained within a deed of conveyance of land. Phillips, the respondent, sought to enforce the covenant against Neeta (Epping) Pty Ltd, the appellant, who had acquired the land subject to the covenant.
The central legal issue before the High Court was whether the restrictive covenant, which purported to bind future owners of the land, was enforceable in equity against the appellant. Specifically, the court had to determine if the covenant "ran with the land" in a manner that equity would recognise and enforce against a successor in title who had notice of its existence.
The High Court held that the covenant was enforceable in equity. The reasoning of the court, particularly that of Barwick C.J., emphasised that for a restrictive covenant to bind successors in title, it must be intended to do so and must touch and concern the land. The court found that the covenant in question, by restricting the use of the land for a particular purpose, clearly touched and concerned the land. Furthermore, the court affirmed the principle that equity will enforce such covenants against purchasers with notice, regardless of whether the covenant strictly satisfied the requirements for running with the land at common law. The intention of the parties at the time the covenant was created was a crucial factor in determining its enforceability in equity.
The High Court dismissed the appeal, upholding the enforceability of the restrictive covenant.