Kennedy v Vercoe [1960] HCA 64

High Court of Australia Dixon C.J. Kitto and Windeyer JJ. Kennedy v Vercoe [1960] HCA 64

ORDER Appeal allowed with costs. Decree or order of the Supreme Court discharged. In lieu thereof pronounce a decree or order as follows: Declare that the contract in the pleadings mentioned should be carried into execution and specifically performed. Declare that to that end the defendant was and is bound to do whatever may be reasonably required of him on the part of the plaintiff to enable the plaintiff to procure the acceptance of the defendant by the landlords of the premises mentioned in the said contract as a tenant thereof. Order that upon the defendant's being so accepted as tenant he do specifically perform the said contract and do pay to the plaintiff the sum of £2300. Further order that if within a reasonable time from the making of this order the landlords fail to accept the defendant as tenant of the said premises then in that case either party shall be at liberty to apply to the Supreme Court for such order as may appear just. Declare that in the event of its appearing upon such application that the said landlords will not accept the defendant as a tenant of the said premises and that they will not do so for reasons which are not brought about by any act or default of the defendant under the contract including the terms express or implied in cl. 9 thereof the contract is not further specifically enforceable and the Supreme Court may give such relief to the parties consistently with this order as may appear just. Dismiss counter-claim with costs. Order that the defendant pay the costs of the suit to the date of this order.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 26 Dixon C.J., Kitto and Windeyer JJ.

This is an appeal from a decree of Myers J. in a suit for specific performance. The defendant filed a counter-claim. By the decree the suit was dismissed and upon the counter-claim a declaration was made that the agreement which the plaintiff had sought to enforce had been rescinded. It was ordered that two sums, one of £200 and the other of £800, paid by the defendant to the plaintiff be repaid by the plaintiff to the defendant. The plaintiff appeals to this Court from the decree both as to the claim and the counter-claim.