Allen v Carbone [1975] HCA 14

High Court of Australia Stephen, Mason and Murphy JJ. Allen v Carbone [1975] HCA 14

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

May 21 Stephen, Mason and Murphy JJ.

In a suit for specific performance Mahoney J., sitting in the Equity Division of the Supreme Court of New South Wales, held that although the respondent vendor, Mr. Carbone, had agreed to accept an offer by the appellant to buy his shop premises at Burwood, near Sydney, for $24,000, no binding contract came into existence because the parties contemplated that they would not be bound unless and until a formal contract was signed by them and exchanged by their solicitors. On appeal from an order dismissing the suit the appellant submits that the learned judge should have held that the transaction between the parties itself amounted to a concluded contract and that as such it was not dependent on the execution and exchange of a formal contract.

The judgment under appeal relates in meticulous detail the evidence and the findings. For present purposes the facts as found may be stated succinctly. On 10th July 1972 the appellant, a widow with some $4,000 to invest, was advised by her brother Mr. Cummings, the manager of a real estate agency, that the respondent's property was for sale and that he wanted a price of $26,000 or $27,000 for it. They then agreed that he should make an offer on her behalf to buy the property for $24,000. That evening Mr. Cummings telephoned the respondent who indicated that he would be willing to sell the property for $24,000 "clear", that is, after payment of commission. It was arranged that the respondent would call at Mr. Cummings' office the next morning. Later the same evening, in a telephone conversation between Mr. Cummings and the appellant it was arranged that he would make on her behalf an offer of $24,000 for the property.