High Court of Australia
IN THE HIGH COURT OF AUSTRALIA
tanwid bon
MERCANTILE CONSIRUCTIONS PY. LIMITED
--Ba Ba AND Ba PTY. LIMITED —
REASONS FOR JUDGMENT
Judgment delivered at_. SYDNEY on. FRIDAY,..18th SEPTEMBER 1964
'A. €. Brooks, Government Printer, Melbourne ©.7039/60
MERCANTILE CONSTRUCTIONS PTY. LIMITED ve
B. B. AND B. PTY. LIMITED
ORDER
Appeal dismissed with costs.
MERCANTILE CONSTRUCTIONS PTY. LIMITED
B.
B. AND B.
ve
Pry.
LIMITED
BARWICK C.J. KIrro J. TAYLOR J» MENZIES J. WINDEYER J.
MERCANTILE CONSTRUCTIONS PLY. LIMITED
ve
B. Be AND B. PTY. LIMITED
By a contract in writing dated 23rd May 1960 the appellant agreed to buy from the respondent and the respondent agreed to sell to the appellant a parcel of land upon which was erected a building known as 15 Randle Street, Sydney, for the sum of £18,750. The contract contained a clause 23 reading: "The purchaser acknowledges having inspected survey certificate and report dated llth December 1959, prepared by Gallagher & Odell and accepts the property with the discrepancies as shown therein." The report stated that the positions of "the brick walls of the building and the recent tilework along the frontage to Randle Street in relation to the building alignments of Randle Street and Randle Lane are shown in sketch hereon". The sketch showed that along the Randle Street frontage there was a face of tiles encroaching upon the street by depths varying from one-half to five-eighths of an inch.
The appellant having at a later date refused to proceed with the purchase, the respondent sued for
specific performance. The appellant resisted the suit
on a number of grounds, but a decree for specific performance was made and was upheld by the Full Court of the Supreme Court on appeal. The appellant now seeks to have the decision reversed, making several submissions in support of a single defence, namely that completion of the purchase would cause such hardship to the appellant that a court of equity in the exercise of its discretion should refuse to order specific performance. That that remedy is discretionary it is hardly necessary to say; but the principles upon which it will be refused in a case which
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