Butts v O'Dwyer [1952] HCA 74

High Court of Australia Dixon C.J. Williams, Webb, Kitto and Taylor JJ. Butts v O'Dwyer [1952] HCA 74

ORDER Decree below varied by omitting therefrom the following declaration and orders, namely the declaration that this Court doth declare that the agreement to lease referred to in par. (1) of the statement of claim ought to be specifically performed and carried into effect the order that this Court doth order and decree the same accordingly the order that within fourteen days after service upon the defendants Catherine Agnes Butts and James Butts of an office copy of this decree they do all things and execute all documents which are proper and necessary for them to do and execute in order that a proper application may be presented to the Minister for Lands for his consent to a lease in terms of the said agreement the order that if such application be granted the said defendants do all things and execute all documents which are proper and necessary for them to do and execute in order that a proper memorandum of lease be duly registered in the office of the Registrar-General, Sydney, and the order as to costs and substituting therefor a declaration that the defendants-appellants as executor and executrix of Thomas Butts deceased are bound by an obligation implied in the transaction in the pleadings mentioned to do all such acts and execute all such documents as may be reasonable and proper on their part to enable the plaintiff to apply to the Minister for Lands for his consent to the transfer by way of lease of the land comprised in Crown Grant dated 2nd May 1939 Registered Vol. 5047 folio 3 in accordance with such transaction and to support such application and decree and order that the said defendants appellants do perform and carry out such obligation. Liberty to apply to the Supreme Court if necessary to fix a time or times within which this obligation or any part thereof must be performed. Order the defendants-appellants to pay the costs of the plaintiff and of the respondent Elliott up to and inclusive of the decree, Elliott's costs to be those of a submitting defendant. Further consideration of the suit and all further questions of costs reserved. Subject to this variation appeal dismissed with costs. Cross-appeal dismissed without costs.