Clifton v Coffey [1924] HCA 35

HIGH COURT

[HIGH COURT OF AUSTRALIA.)

CLIFTON - ; is ' e : . APPELLANT;

DEFENDANT,

AND

COFFEY . 5 5 : é Z é : . RESPONDENT.

PLAINTIFF,

ON 'APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Contract—Construction—Condition—Purchase of lease, licence, c., of hotel—

1924. —

SypNey.

Aug. 13, 20.

Isaacs A. Gavan Duffy and Starke JJ.

Property under mortgage—Purchaser to sign bill of sale to mortgagee—Refusal of mortgagee to advance money-—Right of purchaser to recover deposit paid.

By a contract in writing for the sale of the lease, licence, goodwill and furniture ef a hotel, the price agreed upon was £10,800, which was payable by a deposit of £300, £3,700 to be paid not later than a certain day and the balance, £6,800, "to be obtained by the purchaser and paid in cash, or @ guarantee given for the same to the satisfaction of the vendor" on another day. 'The vendor agreed to pay off and obtain the discharge of any security which there might be on the lease, licence or furniture. 'The purchaser agreed "to sign a bill of sale and other usual securities for £6,800 about, part of the said purchase-money, which is to be advanced by " a certain company, "such securities to be signed . . . before transfer of licence."

Held, by Isaacs A.C.J. and Gavan Duffy J. (Starke J. dissenting), that the words "which is to be advanced by " the company were the statement of an essential circumstance on the faith of which, as a fundamental term and condition, the purchaser entered into the bargain, and that upon the failure of that term and condition, by reason of the refusal of the company to advance the £6,800, the purchaser was entitled to recover the deposit of £300 which he had paid.

Decision of the Supreme Court of New South Wales (Full Court): Coffey v. Clifton, (1924) 24 S.R. (N.S.W.) 168, affirmed.