Fitzgerald v Masters [1956] HCA 53

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Taylor JJ. Fitzgerald v Masters [1956] HCA 53

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 11 Dixon C.J. and Fullagar J.

This is an appeal from a decree of the Supreme Court of New South Wales (McLelland J.) in a suit for the specific performance of a contract in writing for the sale of an interest in land. A remarkable feature of the case is that the instrument was executed more than twenty-six years before the commencement of the suit. It was executed in 1927: the suit was commenced in 1953.

The appellants, who were the defendants in the suit, are the executors of the will of John Martin Fitzgerald, who died on or about 30th March 1951, and to whom we will refer as the deceased. The respondent and the deceased were cousins. In 1927 the deceased held certain Crown land in the Land District of Dubbo, comprising 1,773 acres, as a homestead farm. On 5th March 1927 a document was executed by which he purported to sell, and the respondent purported to buy, a one-half interest in this homestead farm. The price was £850. It was recited that a deposit of £200 had been paid, and the balance of purchase money was to be paid "in instalments of £10 or more, at the option of the purchaser, per month", the first of such payments to be made on or before 1st of April 1927. Clause 2 provided: "From the date hereof the Purchaser shall be entitled to possession of the said Homestead Farm equally with the said Vendor and the Purchaser shall be liable for one half of all rents rates and taxes due or accruing due as from the date hereof and the Purchaser shall also be liable for one half the amount of the mortgage moneys due by the said Vendor to the Commissioners of the Government Savings Bank of New South Wales and the Purchaser shall also be liable for one half of all interest due or accruing due to the said Commissioners of the Government Savings Bank of New South Wales as from the date hereof and the Purchaser shall also be responsible for one half the costs of any improvements or repairs thereafter to be effected on the said land." Clause 3 provided:—"The Vendor shall transfer to the Purchaser one half interest in the said Homestead Farm when the Purchaser has paid to the Vendor the full amount of the said purchase money of Eight hundred and fifty pounds and provided the Purchaser complies with this agreement as regards the other payment as above mentioned for which he is liable." Clause 4 provided that the sale was made "subject to the Minister's consent", and cl. 5 provided that the consent of the Minister should be applied for when the purchaser had paid the full amount of the purchase money, and that each party should use his best endeavours to obtain that consent. Clause 8 provided: "The usual conditions of sale in use or approved of by the Real Estate Institute of New South Wales relating to sales by private contract of lands held under the Crown Lands Act shall so far as they are inconsistent (sic.) herewith be deemed to be embodied herein."