Public Trustee (NSW) v Gavel

[1927] HCA 43

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1927.before it was given the application for consent was at the purchaser’s instance withdrawn, the purchaser having in the meanwhile sold the land to a sub-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 ditionally purchased and conditionally leased land in New South Wales. The contract provided that the land was sold subject to the consent of the Minister for Lands being obtained at the plaintiff’s expense to the proposed transfer, and that “ if for any reason such consent should be refused this contract shall become void and the purchaser shall vacate possession within one month of notification by the vendors of such refusal.” The plaintiff alleged that she had sold the land to John William Walker and that she had requested the defendants to apply to the Minister for Lands for his permission to transfer the land to Walker but that the defendants had refused to do so. She claimed that the defendants might be ordered to make an application for such consent. The defendant the Public Trustee alleged that before the plaintiff requested the defendants to apply to the Minister for his consent to a transfer to Walker, an application had at the plaintiff’s request been made to the Minister for his consent to a transfer to the plaintiff,

40 C.L.R.]

OF AUSTRALJA.

but that before such consent was given the application was at the plaintiff’s request withdrawn. The Public Trustee by counterclaim alleged that by reason of the plaintiff’s conduct she had made the contract incapable of performance, and claimed rescission of the contract, delivery of possession of the land and mesne profits. The suit was heard by Davidson J., who made a decree ordering specific performance of the contract and ordering the defendants to apply to the Minister for his consent to a transfer to Walker.

From that decision the defendant the Public Trustee appealed to the High Court.

Other material facts are stated in the judgment hereunder.

Maughan K.C. (with him David Wilson), for the appellant. Where the consent of a third person is essential to a transfer to a purchaser, the purchaser is not entitled to have an application made for consent to a transfer to some other person. The appellant was not bound to take the risk of the name of anyone else than the respondent being submitted to the Minister. The respondent was only entitled to have one application made and, having elected to have an applica­ tion made to herself, she was not entitled afterwards to alter her mind. On this particular contract the Court should not grant specific performance because of the conduct of the respondent (Norton v. Angus (1) ). The appellant did everything that he was bound to do under the contract and the completion of the contract was prevented by the respondent.

Browne K.C. (with him Dudley Williams), for the respondent. Under the contract the respondent having asked for an application for consent to a transfer to herself was entitled to stop that applica­ tion and have another application made for consent to a transfer to another person. The contract means that if within a reasonable time the respondent could not produce a consent to a transfer to herself or her nominee then the contract should be at an end. Under an ordinary contract for sale of land the purchaser is entitled to a conveyance to a nominee (Earl of Egmont v. Smith (2) ).

(1) (1926) 38 C.L.R. 523.

(2) (1877) 6 Ch. D. 469.

The judgment of the Court (which was delivered by Knox C.J.)

was as follows :—

In this case the appellant and the respondent entered into a contract for the sale by the appellant to . the respondent of certain conditionally purchased and conditionally leased land, and the sale was by clause 6 of the contract expressed to be “ subject to the consent of the Minister for Lands being obtained at the pur­ chaser’s expense to the proposed transfer.” That clause went on to provide : “If for any reason such consent shall be refused this contract shall become void.” In the event of the Minister’s consent being obtained the contract would of course remain in full force. What happened was this :—The respondent sent to the appellant a copy of the contract for execution and a form of application for the Minister’s consent to a transfer to the respondent. Without going into details, that application was completed by the appellant, who was the proposed transferor, and was returned to the solicitor for the respondent, who lodged it at the Lands Office, and all necessary steps were taken to obtain the consent of the Minister to that particular proposed transfer. The application having gone to the Minister, he did not make up his mind as to whether he would consent or refuse to consent, but he referred the matter to the Land Board for inquiry and report. A few days before the matter was to come on for hearing before the Land Board, the respondent agreed to sell to one Walker all her interest in the land under the contract. She then intimated to the Minister her desire to withdraw the application for the Minister’s consent to a transfer to her. The withdrawal was assented to by the Minister, and thereupon the whole of those proceedings became abortive. The respondent insisted and now insists that, notwithstanding what had happened, the appellant was bound to make another application to the Minister for his consent to another transfer, namely, a transfer to Walker, and to transfer the land to Walker if such consent were given. On the other hand the appellant says that he has performed all that he bound himself by the contract to perform, and that the fact that the respondent has not got a transfer of the land is due to her own default and not to the default of the defendant. In other wTords, the appellant says that the respondent has failed to show that she

40 C.L R.]

OF AUSTRALIA.

was ready and willing to perform her part of the contract. If the obligation undertaken by the appellant was to obtain the consent of the Minister to a transfer to the respondent individually, and not to her nominee, it is clear that the appellant has done all that he was bound to do and that the failure to complete the transaction is not due to any default on his part but is due to the action of tlie respondent in withdrawing the application for consent. But if, on the other hand, the original obligation assumed by the appellant was to apply for consent to a transfer to the respondent or her nominee, the respondent required the appellant to apply for consent to a transfer to her and that application, having been made, was rendered abortive by her conduct. In either view it seems to us that the appellant has done all that he has contracted to do. If his contract was to apply for the consent of the Minister to a transfer to the respondent individually, he has done it and the application was rendered abortive not by his fault but by the fault of the respondent. If, on the other hand, his duty was in the first instance to apply for consent to a transfer either to the respondent or to her nominee at her election, he has been asked by her to apply for consent to a transfer to her and he has done so. In that view he has performed his duty under the contract. In either case perform­ ance of the contract has been prevented not by the default of the appellant but by the default of the respondent. She has shown that she was not ready and willing to perform the contract. That being so, we think that the appeal should be allowed and the suit dismissed with costs, including the costs of this appeal. The appellant counterclaimed for possession and mesne profits. By consent of the parties the order on the counterclaim will be as follow’s :—Respondent to deliver up possession to the appellant on 7th December 1927. Respondent to pay to appellant interest at 6 per cent per annum from 6th February 1926 to 7th December 1927 on £4,845.

Order accordingly.

Solicitor for the appellant, F. Lynne Rolin.

Solicitor for the respondent, J. H. R. Rhodes, Condobolin, by

F. Marsden.

B. L.