Public Trustee (NSW) v Gavel

has never been thrown upon the Consolidated Revenue. Under c- or A'

1927

these circumstances the learned Judge concluded rightly, in our

,__

opinion, that the allowance was not paid to the appellant in respect

Mamin

V.

of the performance of duties as an officer of the police force. The King.

Consequently the appeal ought to be dismissed.

Appeal dismissed with costs.

Solicitors for the appellant, P. J. Ridgeway & Schilling.

Solicitor for the respondent, F. G. Menzies, Crown Solicitor for

Victoria.

E. F. H.

[HIGH COURT OF AUSTRALIA.]

THE PUBLIC TRUSTEE OF NEW SOUTH ,

Appellant

;

WALES........................................................j

Defendant,

AND

GAVEL..........................................................................Respondent.

Plaintiff,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

Vendor and Purchaser—Sale of Land—Sale subject to consent of Minister for Lands H. C. OF A.

to transfer—Application for transfer to purchaser—Withdrawal of application

1927.

by purchaser—Right of purchaser to another application for consent to transfer to

nominee—Specific performance—Readiness and willingness.

Sydney,

Nov. 8, 9.

A contract for the sale of certain conditionally purchased and conditionally

Knox C.J.,

leased land in New South Wales provided that the sale was subject to the

Isaacs,

Qavan DuSy

consent of the Minister for Lands being obtained to the proposed transfer and Starke JJ.

and that if for any reason that consent should be refused the contract should

H. C. of A.become void. All necessary steps were taken to obtain that consent, but

1927.before it was given the application for consent was at the purchaser’s instance withdrawn, the purchaser having in the meanwhile sold the land to a sub-

Publicpurchaser. The purchaser then required the vendor to join in an application

Trustee

(N.S.W.)for the Minister’s consent to a transfer to the sub-purchaser. The vendor

«•

having refused to join in such an application, the purchaser brought a suit

Gavel.against the vendor for specific performance of the contract.

Held, that, whether the vendor was or was not bound in the first instance to apply for consent to a transfer to the purchaser or her nominee, at her election, the vendor, having at the purchaser’s request applied for consent to a transfer to the purchaser, had done all that he was bound to do ; that the performance of the contract was prevented, not by the default of the vendor, but by the default of the purchaser in withdrawing the application for consent to a transfer to her ; and that the purchaser had by her conduct shown that she was not ready and willing to perform the contract and was therefore not entitled to specific performance.

Decision of the Supreme Court of New South Wales (Davidson J.) reversed.

Appeal from the Supreme Court of New South Wales.

A suit was brought in the Supreme Court in its equitable juris­ diction by Lois Emily Gavel against the Public Trustee of New South Wales and James Gifford, by which the plaintiff claimed specific performance of a contract dated 31st March 1926 whereby the plaintiff agreed to purchase from the defendants certain con­…