Maralinga Pty Ltd v Major Enterprises Pty Ltd [1973] HCA 23

High Court of Australia Barwick C.J. Menzies and Mason JJ. Maralinga Pty Ltd v Major Enterprises Pty Ltd [1973] HCA 23

ORDER Appeal dismissed with costs. Cross-appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 7 Barwick C.J.

The appellant appeals against a decree of the Supreme Court of New South Wales in Equity dismissing its suit for rectification of a contract of sale of land and for specific performance of the contract as rectified. The facts of the matter as found by the Supreme Court (Hope J.) are as follows.

The respondent was the owner of land in Vaucluse Heights, Sydney, having an area of some 15,038 square feet on which was erected a very large dwelling house known as Ormonde Hall. The area of the land was large enough if that dwelling were demolished to be sub-divided into two lots: and the necessary local government approval had been obtained for such a sub-division. The respondent, in whose dealing with the land a Mr. Brady was the principal actor, having already made a number of endeavours to dispose of the land without success, once more placed it in the hands of auctioneers with instructions on this occasion to offer it at auction primarily as one lot with a dwelling house thereon and failing a sale in one lot, to offer it in two lots. In the latter event, of course, the house on the land would have to be demolished. The reserve finally fixed for the sale of the land in one lot was $160,000.

The auctioneer was instructed that the terms on which the land was to be sold in one lot were to include:

(A) The purchaser shall have the option whether or not it required the vendor (respondent) to demolish the buildings and improvements and

(B) the vendor (respondent) requires a cash payment of $75,000 on completion and will take a mortgage for the balance of the purchase price, the mortgage to provide for repayment at the expiration of three years, to be non-reducible in the meanwhile and to carry interest at the rate of eight per cent per annum.