Fullers' Theatres Limited v Musgrove [1923] HCA 12

G Sommenille

524 HIGH COURT [1923,

{HIGH COURT OF AUSTRALIA.)

FULLERS' THEATRES LIMITED AND

ANOTHER : PLaIntiFrs,

} APPELLANTS ;

AND

MUSGROVE . : 2 5 'i Ps RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Contract—Specific performance—Agreement to grant lease—Conduct disentitling

1923. plaintiff to equitable relief —Bar to relief —Prior action for ejectment—Rescission ~~ of contract—Blection to rescind—Breach not going to root of contract—Restitutio in Sypney, integrum—Rescission by mutual consent. Mar. 26, 27;

May 3. By a tripartite agreement between the two appellants, A and B, and the ceria: respondent, it was agreed that A should grant a sub-lease of one theatre to the Isaacs and respondent, that B should grant a lease of another theatre to the respondent,

pean and that the respondent should grant a sub-lease of a third theatre, including

all offices, to B. Pursuant to the agreement the respondent entered into pos- session of the two theatres leased to him and B entered into possession of the theatre leased to him, except that he was excluded from a room which the appel- lants alleged to be an office to possession of which B was entitled under the agreement. After the lapse of several months, during which the several parties: paid rent for, used and made profit out of the respective theatres and correspon- dence passed between the parties in which delivery of possession of the room was on the one side claimed and on the other side resisted, the appellants instituted an action to recover damages for breach of the agreement and, shortly after- wards, an action for ejectment against the respondent. After further nego- tiations the action for ejectment was discontinued, and the appellants brought a suit in the Supreme Court of New South Wales in its equitable jurisdiction