Bishop v Taylor [1968] HCA 68

High Court of Australia McTiernan, Taylor and Menzies JJ. Bishop v Taylor [1968] HCA 68

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 31 McTiernan and Taylor JJ.

This is an appeal from an order of the Supreme Court by which a suit, instituted by purchasers, for specific performance of a contract for the sale of certain land was dismissed.

The contract was made on 27th March 1965 and it was for the sale of some 2,625 acres of Crown leasehold, known as "Forest Breay", for the sum of £8,000 "clear of rates and taxes". It was expressed by the conditions of sale to be "subject to satisfactory finance". A further condition was expressed by the words:

Vendor to pay £1,000 per year in advance for lease of existing cultivation until 30th May 1966 or end of harvesting period.

One-third share of crops thereafter until end of peanut crop in 1968 or end of harvesting period or as otherwise agreed upon.

Time was to be of the essence of the contract and possession of the property was to be given not later than 1st May 1965. The suit was dismissed ultimately because the learned judge of first instance held that the provisions of the condition last quoted were too vague and uncertain to enforce and, being an integral and indivisible term, no part of the contract could be specifically enforced. Further, his Honour seems to have formed the view that the appellants had not made out the allegation in their statement of claim to the effect that at all material times they had been, and that they were at the time of the hearing, ready and willing to perform their obligations under the agreement.

It is unnecessary to traverse in detail all that occurred between the date of the contract and the time the suit was instituted for these matters are fully discussed in the reasons given below. But it should be stated that it is abundantly clear that time ceased to be of the essence of the contract and that, notwithstanding a futile attempt to require the appellants to complete the purchase on 29th October 1965 and some purported rescissions of the agreement, it was, if valid, still on foot when the hearing of the suit commenced. It is also clear enough that although the appellants had some difficulty initially in making the necessary arrangements for financial assistance to enable them to complete they appear to have been able by 5th July 1965 to make arrangements with their bank which probably would have enabled them to settle. But whether after the end of October 1965, or at the commencement of the suit, or at the time of the hearing, they were in a like position is another matter.