IAC (Finance) Pty Ltd v Courtenay [1963] HCA 64

High Court of Australia Dixon C.J. Kitto and Taylor JJ. IAC (Finance) Pty Ltd v Courtenay [1963] HCA 64

ORDER Appeals dismissed with costs.

Cur. adv. vult.

1963, Dec. 20 Dixon C.J.

These are three appeals heard together from a decree of the Supreme Court of New South Wales in Equity. The decree was pronounced by Hardie J. in a suit for the enforcement of rights depending upon a contract for the sale of land. The plaintiffs, who were the respondents in the appeals, consisted of three persons named Courtenay and one named Victor Butler. Mr. Butler died and has been replaced as a party, if I understand the matter correctly, by Norma Mary Agnes Butler. (See affidavit by Norma Mary Agnes Butler sworn on 28th June 1962.) Among the defendants who were respondents to the appeals, Miss Thelma Valette Austin, a defendant, died on 6th February 1962. By an order dated 13th August 1962 Mr. John Anthony Park Nelson was appointed to represent all persons interested in her estate in these appeals.

Miss Austin was entitled as registered proprietor to an estate in fee simple in the land sold. It consisted of fifty-two or fifty-three acres. It appears that on 24th February 1958 she executed a contract of sale of her land, which is the subject of these proceedings. The four plaintiffs (i.e. the three Courtenays and Victor Butler) were the purchasers. Some days before 24th February 1958 she had received a preliminary deposit of £100 on the sale. The purchase price named in the contract was £15,000 and the terms contained in the contract were that £3,000 should be paid as deposit, and that the balance of the purchase money would be payable within three years, bearing interest at six per cent. The purchasers would place in the hands of the agent a cheque for £3,000 by way of deposit and the balance was to be secured by mortgage back to the vendor. The contract said the mortgage should contain the usual terms and conditions and be prepared by the vendor's solicitor at the expense of the purchasers. It should be a mortgage for three years and of course interest was provided for. Endorsed on the contract is a receipt for payment of £3,000 in cash by Mr. Hector Lewis Courtenay, one of the plaintiffs. W. T. Easton & Co. were the vendor's firm of solicitors and Mr. W. T. Morck was the purchasers' solicitor. A transfer was executed by the registered proprietor, Thelma Valette Austin, in consideration of £15,000 paid to her, the receipt whereof she thereby acknowledged. The transfer was to the four plaintiffs (three Courtenays and Victor Butler) of her whole estate and interest in the land. The transfer is expressed to be signed at Sydney on 23rd July 1958 by the transferor Thelma Valette Austin in the presence of W. T. Easton, solicitor, and it is accepted and verified as correct by Mr. W. T. Morck, solicitor to the transferees. The evidence shows that Easton lodged the memorandum of transfer and the mortgage back for registration at the Lands Titles Office but that he withdrew them on 16th September 1959. On the day following the withdrawal, namely 17th September 1959, a contract of sale was made between the defendant appellant Denton Subdivision Pty. Ltd. and the vendor whose name though left blank in the particulars is given as T. Austin, witnessed by W. T. Easton as her solicitor. The vendor's solicitors are given as W. T. Easton & Co. The whole amount of the purchase money under this contract is given as £26,000, the deposit being £1,500.