DE VRIES AND OTHERS V. WIGHTMAN AND OTHERS

83/88

W. M. Houston, Govt. Print., Melb.

IN THE HIGH COURT OF AUSTRALIA —

__. WIGHTMAN. AND.OTHERS.0 2 _

ORIGINA?

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REASONS FOR JUDGMENT £3

Judgment delivered att... SY ODE Yoo - on..Tuesday, 8th September..1959...

DE VRIES AND OTHERS

Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that judgment be entered for the plaintiffs vapon the claim in the action for £1750 with costs of the action and judgment be entered for the defendants upon the counterclaim for £560 with costs of the counterclaim. Order that the judgments upon the claim and the counterclaim be set off and that the plaintiffs recover the balance only, wiz. £1190, and be at liberty to issue execution therefor. The costs of the claim and counterclaim when taxed are to

be set off and execution may be issued for the balance.

DE VRIES AND ORS

Ve WIG] AN

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IB _VRIE: . Ve

WIGHTMAN AND ORS.

On 26th November, 1954, the appellant entered into an agreement in writing to purchase from the respondents the right title and interest of the latter in and to "a general mixed and cafe business" at Clontarf near Brisbane "together with the goodwill of the said business and the stock-in-trade, fixtures, fittings, plant, trade utensils, implements, licences and quotas used by the vendor in connection therewith" as set out in a schedule to the agreement. The purchase price was £3,000 and this sum was payable as to £2,000, upon the execution of the agreement and as to the balance, by instalments of not less than £10 per week the first of which was to become payable on 27th November, 1955. The sale was expressly subject to the purchasers obtaining a satisfactory lease of the business premises for a period of three years with an option of a further term of three years at a weekly rental of £10. The respondents were, however, the registered proprietors of the premises and on 30th November, 1954, they executed a memorandum of lease whereby they leased the premises to the appellants for a term of three years at the specified weekly rental. The premises consisted of a shop and flat dwelling and on the day after the agreement was executed the appellants took over the business. When the lease was executed on30th November they took possession of the flat.