Vendor and purchaser—Conditions of sale—Error or misdescription of the property—Whether extends to defects of title—Failure of vendor to mention that lease contained option to renew—Compensation—Specific performance. Torrens System—Registration—Indefeasibility of title—Lease rendered void by statute—Registration under Real Property Act, 1900 (N.S.W.)—Effect upon validity—Later enactment qualifying earlier—Real Property Act, 1900 (N.S.W.)—Industrial Arbitration Act, 1940 (N.S.W.) s. 88B.
Decisions
May 10. The following written judgments were delivered:- BARWICK C.J. By an agreement dated 31st March 1969 the respondents granted the appellant an option to purchase land to which the title was held under the provisions of the Real Property Act, 1900 as amended (N.S.W.). The land was described in a schedule to the agreement which incorporated the provisions of the 1965 ed. of the printed Terms and Conditions of Sale approved by the Law Society of New South Wales and the Real Estate Institute of New South Wales. However, the blank spaces in the printed form were not filled nor was an alternative chosen where printed clauses provided for differing situations or possibilities. This was particularly evident in connexion with cl. 12 of the printed conditions of sale. It was thought by the appellant's advisers that the option appeared to be inadequately expressed and that some supplementary agreement was needed. On instructions from their clients, the solicitors for the appellant therefore prepared and tendered to the respondents a further agreement which the respondents executed on 17th June 1969. As a result of the two agreements the appellant had an option to purchase the described property exercisable on or before 30th October 1969, the sale to be subject to existing tenancies as described but otherwise vacant possession to be given. (at p6)
2. The property was described in the earlier agreement of 31st March 1969 as:
"ALL THAT piece or parcel of land having a frontage of about eighty feet -- inches to Marrickville Road in the Municipality of Marrickville by a depth of about 120 feet (be the said dimensions a little more or less) being Lot 13/16 as shown on D.P. 1971 and being the whole/part of the land comprised in Certificate of Title Volume 10172 Folio 151 together with the improvements erected thereon known as No. 198-204 Marrickville Road, Marrickville". (at p6)
3. Clause 3 of the agreement of 17th June 1969 which, in my opinion, dealt with the matter of vacant possession was in the following terms:
"... if the said option is exercised the sale will be subject to the following existing tenancies but that vacant possession of the remainder of the subject land and premises will be given: (a) As to the lock up shop premises known as 204 Marrickville Road, Marrickville - Lease No. K.135850 in favour of Ferdinando Macri for a term of five years from 1st August, 1965 at a rent at the rate of…
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
Travinto Nominees Pty Ltd v Vlattas [1973] HCA 14
Case
[1973] HCA 14
Decision Date
CaseChat Overview and Summary
Travinto Nominees Pty Ltd (the appellant) appealed to the High Court of Australia from a judgment of the Supreme Court of New South Wales. The dispute concerned the interpretation of a lease agreement and whether the appellant, as the landlord, was entitled to recover from the respondent, the tenant, the cost of certain repairs and maintenance to the leased premises. The Supreme Court had found in favour of the respondent, holding that the appellant was not entitled to recover these costs.
The High Court was required to determine whether the terms of the lease agreement imposed an obligation on the respondent to pay for the specific repairs and maintenance undertaken by the appellant. Central to this determination was the proper construction of clause 4(a) of the lease, which dealt with the tenant's obligations regarding the condition of the premises, and the interplay between this clause and other provisions of the lease. The court also considered whether the repairs were of a structural nature, which might fall outside the tenant's responsibility.
The High Court, in allowing the appeal, reasoned that clause 4(a) of the lease imposed a broad obligation on the tenant to keep the premises in good repair and condition, and to maintain them. The court held that the repairs in question, which included work to the roof, gutters, and external walls, were not structural in nature and therefore fell within the tenant's obligations under the lease. The principles applied focused on the ordinary meaning of the lease terms and the intention of the parties as expressed in the written agreement, with the court adopting a construction that gave effect to the tenant's comprehensive undertaking to maintain the premises.
The High Court ordered that the appeal be allowed, and the judgment of the Supreme Court of New South Wales be set aside. The matter was remitted to the Supreme Court to determine the amount of the appellant's entitlement to recover the costs of the repairs.