Svanosio v McNamara [1956] HCA 55

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Fullagar JJ. Svanosio v McNamara [1956] HCA 55

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 against a judgment of the Supreme Court of Victoria (Martin J.) in an action in which the appellant was plaintiff and the respondents were defendants.

The respondents are the executors of the will of Louisa McNamara, who died in November 1954. Included in her estate was a piece of land at Grassy Flat, near Bendigo, on which stood (or was believed to stand) a hotel known as the Bull's Head Hotel. Attached to the hotel was a victualler's licence under the Licensing Acts of Victoria. The title to the land is a general law title: it has not been brought under the Torrens System. By a contract dated 2nd March 1955 the respondents agreed to sell, and the appellant agreed to buy: "1. All that piece of land being Crown allotment fifteen of section O "Grassy Flat" Parish of Sandhurst County of Bendigo being the land comprised in conveyance No. 176 book 221 together with the licensed premises known as the "Bull's Head Hotel" erected thereon subject to all registered appurtenant easements (if any). 2. The victualler's licence issued for and in respect of the said hotel and the goodwill thereof." The contract also included an area of adjoining land held on "permissive occupancy" under the Land Acts of Victoria, but this is of no importance. The purchase price was £5,000, of which £500 was to be paid as a deposit. The balance was to be paid to the vendors, and possession was to be given and taken, on the granting of the approval of the Licensing Court to the transfer of the licence to the purchaser. Of the total purchase money, the sum of £800 was apportioned to the freehold premises, and the balance of £4,200 to the licence and goodwill. The contract incorporated the conditions contained in the fourth schedule to the Property Law Act 1928 Vict.. To these it will be necessary to refer later.