High Court of Australia
osrt
HL %. Grea, Gort. Print, Melb.
LOA Of 0 fh
IN THE HIGH COURT OF AUSTRALIA.
EVANS.
ORIGINAL
REASONS FOR JUDGMENT.
REASONS FOR _JUDGNENT. LATHAM C.J. STARKE J. DIXON.
McTIERNAN J. WILDTAMS J.
EVANS ev. FRASER.
REASONS FOR JUDGMENT. LATHAM C.J.
Various questions have been argued in this case, some of general importance, but the matter, in my opinion, may be determined upon the ground which is the basis of the judgment of the trial judge. Clause 5 of the agreement sued upon is in the following
termsi-
"......it is further agreed that if either of the parties hereto as Vendor and Purchaser, should at any time neglect to perform or refuse to comply with any part of this Agreement, the party so refusing or neglecting shall pay unto the other of them, who shall be willing to complete the same, the sum of One hundred (£100/0/0) pounds (exclusive of the sum of Twenty-five (£25/0/0) pounds
now deposited) as or in the nature of liquidated
damages . "
The question is whether the words in clause 5 "neglect to perform or refuse to comply with any part of this Agreement" apply to the obligation which is placed upon the other party to the agreement by clause 4A. Clause 4A is in these terms:-
"The Vendor warrants that the lease herein referred to
is for a period of not less than two years with the
right of option for an additional three years."
His Honour Mr. Justice Gavan Duffy held that that was a- warranty as to the existence of a lease of a particular description and, as it was established that there was no such lease, the result was that there had been a breach of the warranty; but that there had been no "neglect to perform" or "refusal to comply" with any part of the agreement on the part of the other party.
In other words, he interpreted clause 4A as referring to things thereafter to be done under the agreement and not as referring to the warranty of an existing fact. I agree with that construction of the agreement. Upon this view clause 5 does not apply to a preach of clause 44. Accordingly, no argument founded upon clause 5 having relation to any limitation of the amount of damages recoverable under the agreement has relevance to a claim based upon a breach of clause 4A. I add that it has been argued that clause 4A impliedly contains a promise, and really means that
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