Blomley v Ryan [1956] HCA 81

High Court of Australia Taylor J. McTiernan, Fullagar and Kitto JJ. Blomley v Ryan

ORDER Appeal dismissed with costs.

Cur. adv. vult.

Dec. 17, 1954 Taylor J . delivered the following written judgment:—

The plaintiff in this suit seeks a decree for specific performance of an agreement for the sale to him of the defendant's grazing property known as "Worrah" and which is situated near Boggabilla in New South Wales. Alternatively damages are claimed in respect of the defendant's refusal to complete the sale. The case is, of course, of a type in which a decree for specific performance is normally available but the defendant claims that the circumstances established by the evidence operated to render the agreement voidable at his option or, alternatively, show that this is a case in which the Court, in the exercise of its judicial discretion, should refuse to make such a decree. The circumstance that the latter defence was available only in answer in the plaintiff's primary claim for specific performance left the suit in such a form that it was possible that the claim for damages could succeed, although upon the evidence it might be proper to refuse a decree for specific performance and, indeed, although the evidence which made such a refusal proper was adequate to support a counterclaim for rescission of the agreement. Upon consideration of the matter after the termination of the hearing I formed certain views on the questions of fact involved in the case and it appeared to me that the attention of the parties should be directed to this possibility. Accordingly the suit was restored to the list and I intimated to counsel for the parties that the views which I held upon the evidence as it then stood would require me to refuse to make a decree for specific performance and that consideration should be given to the question of what other order or orders should be made. I further intimated to them that I had grave doubts whether justice did not require that further consideration should be given by the parties to the form of the pleadings and the parties were informed that I would be prepared to hear them on this aspect of the matter at some future time. At a later stage the defendant sought leave to amend his statement of defence by adding a claim for rescission alleging that "at the time of the signing of the contract of sale and of the negotiations between the parties in connection therewith the defendant was an old man lacking in education, suffering from the effects of intoxication, mentally and physically weak, without proper advice, unable to protect himself and on unequal terms with the plaintiff all of which circumstances the plaintiff then well knew." The proposed amendment further alleged that the plaintiff "took advantage of the said circumstances of the defendant, that independent advice was not given to the defendant, that the plaintiff acted with undue haste and procured the said agreement of the defendant to the sale of the property at a great under value and upon terms highly favourable to the plaintiff and unfavourable to the defendant." No objection was made to the substance of the amendment but counsel for the plaintiff objected that if the amendment were permitted at that stage it would result in serious prejudice to the plaintiff. In my view no question of prejudice arose and, being of opinion that it was proper to do so I allowed the amendment and gave leave to the plaintiff to call such further evidence, if any, as he might think fit. Pursuant to leave so given further evidence was called on behalf of the plaintiff.