Mehmet v Benson [1965] HCA 18

High Court of Australia Barwick C.J. McTiernan and Windeyer JJ. Mehmet v Benson [1965] HCA 18

ORDER Appeal allowed with costs. Cross-appeal dismissed with costs. Decree of the Supreme Court set aside and in lieu thereof Declare that the agreement between the appellant and the respondent—Exhibit A in the suit—ought to be specifically performed and order accordingly. Declare that up to the month of April 1959 the appellant had paid on account of purchase money the sum of £7,500 and no more. Direct an enquiry—

(a) as to the amount of rents and profits received by the respondent from the land comprised in certificate of title, volume 2241, folio 148, from the date of the said agreement up to the date of completion (including moneys paid into the joint account in the names of the appellant and respondent with the National Bank of Australasia Ltd., Wollongong Branch);

(b) as to the outgoings paid or payable in respect of the said land from the date of the said agreement up to the date of completion, including amounts paid out of the said joint account;

(c) as to the amount of rent due and payable and unpaid from the date of the agreement to the date of completion by the appellant to the respondent in respect of his occupation of part of the said land;

(d) as to the amount of interest payable and unpaid by the appellant to the respondent up to the date of completion on the unpaid balance of purchase money under the said agreement.

Order—

(1) that one-half of the balance of the rents and profits received by the respondent from the said land less the outgoings paid in respect thereof (and less any amount already paid to the appellant out of the said joint account), as on each quarter day for the payment of interest by the appellant on the balance of purchase money under the said agreement, be credited as on each such quarter day to the appellant against such interest accruing due under the agreement, and in the event that the amount of any such balance shall exceed the interest and arrears of interest due on any such quarter day, the amount of such excess shall be credited, to the appellant as on that day as on account of the balance of purchase money.