Redapple and Howgate v Hely [1931] HCA 41

452 HIGH COURT

(HIGH COURT OF AUSTRALIA.)

REDAPPLE AND HOWGATE . . . , APPLICANTS, AND RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

H.C. or A. Vendor and Purchaser—Sale of land—Parcele—Boundaries—Purchaser 8 1931. accurate title—Rescission—Special conditions—Undertaking to apply for Sn) ment of title to conform to plan—Application made, but unsuccessful—

MELBOURNE, any right to rescind—Transfer of Land Act 1928 (Vict.) (No. 3791), Sept. 25, 28, 216, 233.

Sypyey, By contract dated 14th April 1927 the respondent agreed to sell t Vov. 30. appellants a piece of land on which a building was erected. The s Rich, Starke, wall of the building encroached on the adjacent land on the south a dista apien Evatt varying from 6} inches in front to 14} inches at a point 30 feet from the JJ, 'The contract of sale described the land as the land " shown on the plan hereto." 'This plan was copied from a plan of survey referred to in the c

tions of the contract and prepared with a view to having the title

to accord with the occupation. The conditions of the contract

(inter alia) that the vendor would " forthwith apply at her own expense

to amend the certificate of title to accord with the measurements sho

the plan of survey, that the certificate of title "in respect of the land sold

be produced, and also that in default of requisitions the purchasers sh

deemed to have accepted title, and that no mistake in the description,

ments or area should invalidate the sale, The purchasers inspected ti

went into and remained in possession up till the time of the summons he

after mentioned, The vendor applied in December 1927 to have

amended, but the application was not successful and was withdrawn in

1930. In February 1931 the appellants first leant that the

45 C.L.R.] OF AUSTRALIA.

to rescind the contract. On a vendor and purchaser summons taken out by the appellants, the Supreme Court held that they were not entitled to rescind. On appeal to the High Court,