Godecke v Kirwan [1973] HCA 38

High Court of Australia Walsh, Gibbs and Mason JJ. Godecke v Kirwan [1973] HCA 38

ORDER Appeal allowed with costs. Order of the Supreme Court of Western Australia set aside. In lieu thereof order that the application made to that Court by the originating summons issued on 15th June 1972 be dismissed with costs. Declare that upon the acceptance by the respondent of the offer contained in the document signed by the appellant Robert Harold Godecke on 22nd November 1971 there was a binding contract for the sale and purchase of the land therein described and that that contract ought to be specifically performed. Order that the appellants and the respondent are to be at liberty to apply to the Supreme Court of Western Australia for any such further directions or orders as may appear necessary or desirable in relation to the carrying into effect of the said contract.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 20 Walsh J.

The question raised by this appeal is whether or not a binding contract for the sale of certain land was made between the respondent and the appellant Robert Harold Godecke (Godecke). It is an appeal from an order made by the Supreme Court of Western Australia (Virtue J.) upon an application made by the respondent, pursuant to s. 138 of the Transfer of Land Act 1893 WA, as amended, seeking an order for the removal of a caveat which had been lodged by the appellant R. H. Godecke Pty. Ltd. (the company), claiming an estate in fee simple as purchaser by virtue of a contract of sale. The appellants claim that this contract was made by means of the signing by Godecke and the respondent of the document which will presently be described. The respondent disputes that there was a binding contract.

As the learned primary judge pointed out, an application to remove a caveat is not normally an appropriate proceeding in which to determine a disputed question as to the making of a contract for the sale of land or to determine in effect whether the party alleging the existence of such a contract is entitled to specific performance of it. But his Honour stated that the parties had assured him that the only questions to be determined were questions of law as to the proper construction of the offer and acceptance contained in the document and had agreed, subject to rights of appeal, to accept his decision and to be bound by it. In this Court learned counsel for the appellants stated that the question for decision was whether upon the proper construction of the offer and acceptance the parties intended to reach a concluded agreement or should be taken to have done no more than negotiate the terms and conditions of a proposed arrangement. Learned counsel for the respondent did not dissent from that formulation of the question and informed the Court that if it came to the conclusion that there was an enforceable contract it could be worked out by mutual agreement. I understand this to mean that the respondent agrees that if the document is construed as constituting a concluded agreement he will carry it out, notwithstanding that because of the lapse of time since it was made an exact compliance with some of its terms is no longer possible.