Hoad v Swan [1920] HCA 50

258 HIGH COURT [1920.

H.C. or A. sec, 28, we think it is desirable for Parliament to consider the

Ree advisability of declaring clearly and unmistakably its intention. WATERSIDE ' Wormae Questions answered : (1) No; (2) Yes. TION OF AUSTRALIA re i 'a v. Solicitors for the claimant, Farlow & Barker. eceppmadl Solicitors for the respondents, Baxter, Bruce & Ebsworth. en Solicitor for the Commonwealth, Gordon H. Castle, Crown Solicitor Assocta- for the Commonwealth. TION. — : B.L. {HIGH COURT OF AUSTRALIA.) HOAD . i E 5 x . . APPELLANT ; PLaInTIFF, AND SWAN AND OTHERS i - . . RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

HL C. or A, Contract—Sale of land—Payment by instalments—Time of essence of contract

1920. Failure to pay instalment—Determination of contract—Action for breach— Election—Bvidence. Sypxxy,

'The respondents sold land to the appellant under a contract by which a

Aug.07, 18: deposit of 15 per cent. of the purchase money was to be paid at once, 15 per cent. eighteen months after the date of the contract and the balance by

ae iy six equal half-yearly instalments. The contract also provided that time should Rich JJ. be of the essence of the contract. The appellant paid the deposit but failed

to pay the first instalment on the due date.

Held, that the respondents were thereupon entitled to determine the contract.

283. 0.L.R.] OF AUSTRALIA. 259

'

- : 'The respondents having subsequently to the failure to pay the first instal- H. C. or A. ment resold the land, the appellant brought an action against them to recover 1920. 1 damages for breach of the contract, and a verdict was given in his favour by "~ F the jury. Hoap

e.

; Held, that the question as to whether prior to the resale the respondentshad = Swan.

'elected either to determine the contract or to treat it as still subsisting not ; having been submitted to the jury, as upon the evidence should have been done, there should be a new trial.