Colyton Investments Pty Ltd v McSorley [1962] HCA 44

High Court of Australia Dixon C.J. Kitto and Windeyer JJ. Colyton Investments Pty Ltd v McSorley [1962] HCA 44

ORDER Appeal dismissed with costs including the costs of and incidental to the application of 3rd March 1962 to the Full Court.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 29 Dixon C.J., Kitto and Windeyer JJ.

This is an appeal from a judgment of the Supreme Court of New South Wales in its equitable jurisdiction (Jacobs J.) dismissing a suit for specific performance of an alleged contract for the sale of an hotel property situated at the corner of William and Durham Streets, Bathurst.

The appellant relied, in order to prove the contract, upon a document which consisted of the well-known printed form of conditions of sale approved by the Real Estate Institute of New South Wales, with certain additions and deletions. The heading described it as conditions and terms of sale for the hotel property "sold by (a named firm of hotel brokers) on account of the estate of the late Frances Mary McSorley". At the end there appeared, under the caption "Contract For Sale", a statement that subject to and upon the conditions and terms of sale previously set forth the appellant purchased the property for the sum of £35,000; and it proceeded "and for the Vendor sells the same", the name of the agent being left blank. There was provision for inserting the date both at this point and at the head of the document, but no date was filled in. The purchase money, the deposit and the balance were set out—they were £35,000, £3,500, and £31,500 respectively—and against the printed words "Signature of Purchaser" there appeared the common seal of the appellant attested as having been affixed in the presence of the secretary and a director of the appellant. Then there appeared the printed words "Signature of Vendor", followed by the signature of one of the respondents, J. G. McSorley. There was no signature by the other respondent, D. R. McSorley.