Neill v Hewens [1953] HCA 92

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Taylor JJ. Neill v Hewens [1953] HCA 92

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 15 Dixon C.J., Williams, Webb, Fullagar and Taylor JJ.

This is an appeal from a decree of Roper C.J. in Eq. dismissing a purchaser's suit for specific performance. The defendants-respondents are the executors of the will and codicil of James Gurney deceased, who died on 15th June 1942. The defendant Hewens was appointed by the testator's will made on 7th July 1939 to be his executor and trustee. The will included a direction to him, described as trustee, to convert the whole of the estate into money and to divide the same among beneficiaries. The codicil appointed the defendant Elizabeth Catherine Bradford to be an additional executor (sic) to the will. The contract alleged by the plaintiffs-appellants is for the sale to them by the executors of a piece of land forming part of the estate called the Stony Creek block for the sum of £800, including an amount of £25 for stock. The defendant Hewens alone defended the suit. He denied the contract and set up the Statute of Frauds. The defendant Mrs. Bradford entered a submitting appearance only and gave evidence in support of the plaintiffs' case.

The material facts may be briefly stated. The Stony Creek block is situate about nine miles from Wauchope in New South Wales. It appears to have been known in the district that the executors would be likely to sell the land, although in fact there had been some dissension between them on the subject. The plaintiffs were desirous of buying the block and in April 1947 applied to the defendant Hewens. He expressed the view that Mrs. Bradford would not agree to sell but the plaintiffs decided to interview her. They appear to have informed her that Hewens had given his consent to a private sale to them. After some discussion she at length gave her concurrence and next day, namely 14th April 1947, she wrote to the solicitors who seem to have acted for the executors informing them that she would consent to a sale to the plaintiffs. Hewens and the plaintiffs then met at Wauchope but Hewens refused to agree to a sale. His solicitors wrote to the plaintiffs on 21st April 1947 saying that he was not agreeable to sell at the price offered and that the property must go up for auction. Shortly after this, however, the respondent Hewens departed from this decision. On 5th May 1947 he appears to have taken the plaintiffs as intending purchasers to see his solicitors. A contract was drawn up on that occasion and it is that document which is put in suit by the plaintiffs. After it had been explained to the plaintiffs in the presence of Hewens the latter said, according to one of the plaintiffs, that that would be all right. The plaintiffs signed the document and handed over a cheque for £100 deposit. Hewens, however, refused to sign the document.