Packer v Babidge [1950] HCA 50

High Court of Australia Latham C.J. Fullagar and Kitto JJ. Packer v Babidge [1950] HCA 50

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 22 Latham C.J.

This is an appeal from the Supreme Court of South Australia (Mayo J.) dismissing an appeal from a special magistrate upon a proceeding by A. N. Packer to recover what was alleged to be excess consideration received by the vendor upon a sale of land by the respondents R. F. Babidge and J. H. Babidge to Packer. The defendants were the executors of their mother, Mrs. Ellen E. Packer. The delegate of the Treasurer of the Commonwealth had consented to the sale of the land at a price of £3,500. The terms of the contract of sale, which had been produced to the Treasurer, provided that the purchaser should release the vendor from an obligation to make a payment to him in accordance with a term of the tenancy agreement between the defendants as landlords and the plaintiff as tenant. Under the tenancy agreement the defendants were bound to pay to Packer £500 if the land were sold. There is a controversy as to whether this provision applied in the case of a sale to the tenant himself.

The tenant Babidge sued under National Security (Economic Organization) Regulations, S.R. 1946, No. 192, reg. 6AB, for £500, described as excess consideration received by the vendors. Regulation 6 (1) of the National Security (Economic Organization) Regulations provides that, except as provided by Part III. of the regulations, a person shall not, without the consent in writing of the Treasurer of the Commonwealth, inter alia, purchase any land. Regulation 6AB is in the following terms:—

(1) Where, after the commencement of this regulation, consent has been given under regulation 6 of these Regulations to any transaction or proposed transaction, and the person from whom the land, option or lease is to be or has been purchased, taken or otherwise acquired accepts or has accepted in respect of the transaction or proposed transaction any consideration in excess of the consideration provided for in the terms of the transaction or proposed transaction as so consented to, the person who has paid or given the excess consideration may, notwithstanding that he is or may be concerned in a contravention of these Regulations in relation to the transaction, but subject to the next succeeding sub-regulation, recover the amount or value of the excess consideration as a debt from the person to whom it was so paid or given by action in any court of competent jurisdiction.