Havenbar Pty Ltd v Butterfield [1974] HCA 24

High Court of Australia Menzies, Stephen and Jacobs JJ. Havenbar Pty Ltd v Butterfield [1974] HCA 24

ORDER Appeal allowed with costs. Order of the Supreme Court of Queensland set aside and in lieu thereof order that judgment be entered for the plaintiff with costs and declare that the contract between the plaintiff and the defendant (exhibit 3 in the action), so far as it has not already been performed, ought to be specifically performed and carried into effect except so far as performance has been waived by the defendant, and order accordingly. Liberty to apply to the Supreme Court of Queensland for any further order or direction in carrying out the decree for specific performance.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 25 Menzies, Stephen and Jacobs JJ.

This is an appeal from the judgment and order of the Supreme Court of Queensland (Matthews J.) dismissing the plaintiff's action in which it sought specific performance of a contract for the purchase by it of thirty acres of land near Brisbane.

The learned trial judge dismissed the plaintiff's action upon the ground that no concluded agreement had been arrived at between the parties concerning the identity of the land which was to be the subject of the sale.

The relevant contract of sale is an unsatisfactory document; to a printed form of contract, as adopted by the Real Estate Institute of Queensland, have been added a number of typed conditions together with a plan. It was these additions which the learned primary judge regarded as revealing an absence of agreement as to subject matter.

The vendor, Butterfield, owns some forty-seven acres of land in the Parish of Capalaba known as Portion IV. Part only of his land was to be sold to the purchaser and the form of contract of sale, in its opening paragraph, describes what is sold as a property