Kater v Kater [1960] HCA 96

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Menzies JJ. Kater v Kater [1960] HCA 96

ORDER Appeal allowed with costs. Order of the Full Court set aside. In lieu thereof order that the appeal to that Court be allowed with costs and order of trial judge be set aside. In lieu thereof declare that the appellant was on the twelfth day of September 1958, and still is, entitled to possession of the subject land and adjudge that the appellant do recover against the respondent possession of the said land and his costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 20 Dixon C.J., McTiernan, Kitto, Taylor and Menzies JJ.

On 2nd October 1956 the appellant undertook by a written contract of sale to sell to the respondent, his son, a station property known as "Swatchfield". The purchase price was £129,500 and the obligation to pay this sum was to be discharged, as to £14,600, by the respondent assuming responsibility for the payment of the principal interest and all other moneys secured by certain mortgages on the property and, as to the balance of £114,900, by a payment of £100 upon signing the contract and the residue thereof, namely £114,800, by payment on demand. By the terms of sale the appellant undertook that he would not demand payment of this latter sum before 1st July 1961 if, in the meantime, the respondent should work and maintain the property in an efficient and husbandlike manner and effect reasonable improvements thereon to the satisfaction of the appellant and otherwise observe and comply with the terms and conditions of the contract. It remains to be said that the due date for repayment of the principal sum secured by the mortgages already mentioned was 1st November 1957 and that by the terms of the contract the respondent expressly bound himself to pay this sum on the due date.