ON APPEAL FROM THE SUPREME COURT OF Contract-Specific performance-Outstanding obligations on either side-Contract of
sale completely performed by vendor-Decree of specific performance against purchaser to enforce payment of purchase price. Statute of Frauds-Action-Debt-Sale of interest in land-Contract not evidenced
by writing-Consideration fully executed by vendor-Action by vendor in indebitatus assumpsit to recover purchase price or instalments thereof-Instru- ments Act 1928-1936 (No. 3706-No. 4370) (Vict.), S. 128.*
It is not a defence to a suit for specific performance of a contract that some part of the contract is not immediately performable. Proceedings Folld. 55.5.R.35% for the specific performance of a contract which is of such a kind that it can be specifically enforced can be commenced as soon as one party threatens to refuse to perform the contract or any part thereof or actually refuses to perform any promise for which the time of performance has arrived. The court can then make a decree that the contract ought to be specifically performed and carried into execution and can SO mould its decree and order such inquiries, accounts and other proceedings under the decree as may be necessary to carry into effect all the promises of both parties, whether they are presently performable or are only performable in the future.
Nives v. Nives, (1880) 15 Ch. D. 649, applied. * The Instruments Act 1928-1936 (Vict.)
making thereof unless the agreement provides, by S. 128: 'No action shall
upon which such action shall be be brought
brought or some memorandum or note thereof shall be in writing and hereditaments or any interest in or
signed by the party to be charged concerning them or upon any agree-
therewith or some other person ment that is not to be performed
thereunto by him lawfully authorized." within the space of one year from the
Where a contract of sale is of such a kind that the purchaser can sue for specific performance, the vendor can also sue for specific performance although the claim is merely to recover a sum of money, and he can do SO although at the date of the writ the contract has been fully performed except for the payment of the purchase money or some part thereof.
Eastwood-Epping Ice &Fuel Co. Ltd. v. Pittock, (1938) 38 S.R. (N.S.W.) 671, at p. 677; 56 W.N. 26, at p. 27, approved.
Decision of the Supreme Court of Victoria (Herring C.J.) affirmed. Where the consideration moving from the vendor of an interest in land to the purchaser has been fully executed SO that the purchaser has become indebted to the vendor for the purchase money or instalments thereof, the vendor can recover the money which has become due in an action at law notwithstanding that the contract of sale is not evidenced by writing in accordance with S. 128 of the Instruments Act 1928 (Vict.). The action would not be brought on the agreement but would be one of indebitatus assumpsit to which…
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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AGLC
Turner v Bladin [1951] HCA 13
Case
[1951] HCA 13
Decision Date
CaseChat Overview and Summary
This case, heard on appeal from the Supreme Court of Victoria, concerned a dispute arising from an oral agreement for the sale of a quarry business. The plaintiffs, vendors, alleged that the defendant purchaser agreed to buy the business for £7,500, paid a deposit of £2,100, but failed to pay the balance of the purchase price and accrued interest. The defendant admitted the agreement but claimed the total purchase price was only £2,100 and raised the defence of the Statute of Frauds, arguing the agreement was not evidenced in writing and was not to be performed within one year, or alternatively, concerned an interest in land.
The legal issues before the court were whether the oral agreement was enforceable despite the Statute of Frauds, and if so, whether the vendor was entitled to specific performance of the contract, particularly when the claim was primarily for the outstanding purchase money. The court also considered whether the agreement, involving the sale of rights to quarry on land owned by a third party, constituted a sale of an interest in land for the purposes of the Statute of Frauds, and whether outstanding future obligations on either side precluded a decree of specific performance.
The High Court affirmed the decision of the Supreme Court, holding that the Statute of Frauds was not a bar to the vendor's claim. The court reasoned that where the vendor's obligations under a contract for the sale of an interest in land have been fully executed, and only the purchaser's payment obligations remain, the vendor can recover the outstanding purchase money in an action of indebitatus assumpsit, which is not an action brought "on the agreement" and thus not barred by the statute. Furthermore, the court held that a contract, even with future performable obligations, is capable of specific performance, and proceedings can be commenced as soon as a party threatens to refuse performance or fails to perform a promise when due. The court found that the agreement was specifically enforceable and that the vendor was entitled to a decree of specific performance.
The appeal was dismissed with costs, and the judgment below was modified to more precisely declare the terms of the agreement and to order the payment of overdue instalments and interest, with liberty to apply for future payments. The court also noted that even if the agreement was considered a sale of an interest in land, the vendor could still recover the overdue purchase money and interest at common law in an action of indebitatus assumpsit, as the consideration moving from the vendor had been fully executed.