Norton v Angus [1926] HCA 35

OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.]

NORTON APPELLANT ; PLAIntiFr, AND ANGUS . § 4 ResPonpDEnt.

Derenpant,

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

Vendor and Purchaser—Contract of sale—Specific performance—Illegality—Sale of "perpetual lease selections—Area greater than maximum which one person can hold —Contract capable of being legally performed—Specific performance or damages— Discretion of Court—Land Acts 1910-1924 (Q.) (1 Geo. V. V. No. 33), secs. 51, 59, 130s, 166.

No. 15—15 Geo,

'The appellant was the holder of a perpetual lease selection under the Land Acts 1910-1924 (Q.) and his wife was the holder of another. The appellant, with the consent of his wife, entered into a contract for the sale of the two selections to the respondent. The contract contained a provision for the 'execution by the appellant of' "a transfer." 'The purchase-money was £1,500, 'of which the respondent paid £500 as a deposit. The respondent applied for the permission of the Minister of Lands to a transfer of one selection to the respondent and of the other to his wife, and was informed that such permission would be granted if the transfers were in order when lodged. Having gone 'into possession and made certain improvements on the land, the respondent refused to go on with the contract. In an action by the appellant for specific performance of the contract, in which the respondent by counterclaim claimed repayment of the £500,

Held, by the whole Court, that the contract was not rendered illegal by the provision for the execution of "a transfer" and the fact that the total area of the two selections was greater than the maximum area which in the particular district might under the Act be held by one person ; that the contract might be __ legally carried out by transfers to two persons ; and therefore that the contract 'was one of which specific performance by the respondent might be ordered and that the respondent was not entitled to repayment of the £500.