Redapple and Howgate v Hely

In *Redapple and Howgate v Hely*, the appellants (purchasers) sought to rescind a contract for the sale of land and a building thereon, arguing that the respondent (vendor) had failed to provide good title. The dispute arose because the southern wall of the building encroached significantly onto adjacent land, a fact not accurately reflected in the vendor's certificate of title. The contract described the land by reference to a survey plan, which showed the building's actual dimensions, and included special conditions regarding the vendor's obligation to apply for an amendment of the certificate of title to conform to this survey plan. The purchasers inspected the title, took possession, and later learned that the vendor's application to amend the title had been unsuccessful and withdrawn. They then purported to rescind the contract.

The High Court of Australia was required to determine whether the purchasers were entitled to rescind the contract, given the discrepancy between the land as described in the survey plan and the vendor's certificate of title, and the vendor's unsuccessful attempt to amend the title. The court also considered the effect of the special conditions of the contract, particularly those relating to the sale of the land according to the certificate of title measurements, the vendor's undertaking to apply for an amendment, and the purchasers' obligation to make requisitions on title within a specified period.

The majority of the court, comprising Rich, Dixon, and McTiernan JJ., held that the purchasers were not entitled to rescind. Their reasoning was that the purchasers contracted with knowledge of the discrepancy between the certificate of title measurements and the survey plan. The special conditions were interpreted as imposing on the vendor a duty to make reasonable endeavours to obtain an amendment of the title, but not an absolute obligation to succeed. Therefore, the vendor's failure to secure the amendment did not constitute a breach going to the root of the contract, especially as the purchasers had not fixed a time for completion or rectification. Starke J. agreed that the purchasers had rescinded prematurely but would have granted a declaration that the vendor had not yet shown good title. Evatt J. also found that the purchasers had rescinded too soon, noting that the time for making title was postponed until a reasonable time after the amendment application was finally dealt with.

The High Court affirmed the decision of the Supreme Court of Victoria, holding that the purchasers were not entitled to rescind the contract. The appeal was dismissed.