Laybutt v Amoco Australia Pty Ltd [1974] HCA 49

High Court of Australia Menzies, Gibbs and Mason JJ. Laybutt v Amoco Australia Pty Ltd [1974] HCA 49

ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales set aside and in lieu thereof order that the suit be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 15 Menzies and Mason JJ.

On 24th July 1972 Harold Laybutt granted an option to purchase certain land at Blacktown to the respondent Amoco Australia Pty. Limited for the sum of $42,000. The consideration for the grant of the option was expressed to be $10.

Clause 1 of the option provided:

1. This option may be exercised by you or your nominee by notice in writing handed to

*me

————

one of us

on or before 24th Oct 1972(Insert actual date) date or within that time posted to

*me

————

one of us

by registered mail to the address shown below and by payment to the said Agent within the said time of the deposit mentioned below.

*Delete words that do not apply and initial.

Clause 2 of the option provided that upon exercise of the option there was to be created a contract for the sale of the property on the terms and conditions of the contract for the sale of land last issued under the approval of the Law Society of New South Wales and the Real Estate Institute of New South Wales. Although the option contained two spaces in which provision was made for the insertion of the name of the vendor's agent, the spaces were not filled in; indeed, a line was drawn through one space. Clause 2 (a) prescribed a deposit in an amount equal to ten per cent of the purchase price.

There was an apparent inconsistency between cl. 1 of the option and cl. 1 of the form of contract incorporated by reference. The former stipulated payment of a deposit within three months as an element in the exercise of the option, whereas the latter provided for payment of a deposit to an agent as stakeholder only upon the signing of the contract for the sale of the land.