Gall v Mitchell [1924] HCA 48

222 HIGH COURT

(HIGH COURT OF AUSTRALIA.]

GALL AND OTHERS ..) . >). a PLAINTIFFs, AND MITCHELL. ' " z : Bs s . ReEsponveEn! DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Sale of Land—Specific performance with abatement—Sale of more land than ve 1924. owns—Erercise of Court's discretion—Hardship.

"ae 'The respondent entered into a contract to sell to the appellants a o

hiatal pastoral property for a lump sum, About one-fifth in area of the prop Nov. 19, 20, is ae i Pg was of poor quality and belonged to the respondent's children, who did concur in the sale and would not allow the respondent to make title to ree portion. 'The respondent had told the appellants that he would nob alll Starke JJ. good country without selling his bad country also. 'The appellants broug

an action for specific performance of the contract or of so much of it a8 respondent was competent to perform, with compensation in respect of so m of it as he was incapable of performing.

Held, that specific performance with compensation in respect of the land which the respondent could not make title should be decreed—neither the that the respondent would not have sold his land unless he thought that was in a position to sell his children's land, nor that the children's land not be as profitably worked by itself as in conjunction with the respond land, constituting a hardship which should prevent the Court from its discretion to grant such relief.

Decision of the Supreme Court of New South Wales (Harvey J.) : Mitchell, (1924) 24 S.R. (N.S.W.) 503, reversed.

36 C.L.R.] OF AUSTRALIA.

Apprat from the Supreme Court of New South Wales to the High H- ©. or A.

Court.

A suit was brought in the Supreme Court in its equitable jurisdiction by Gordon Logan Gall, Oswald Chapman Gall, Ross Percival Gall, Rhoda Mary Gall, Euphemia Isabel Williamson and Mary Ann Moxham, trading as the Tycannah Pastoral Co., against Hugh Fraser Mitchell, in which by their statement of claim the plaintifis alleged (in substance) that on 3rd May 1923 it was agreed that the defendant should sell and the plaintiffs purchase a certain pastoral property of about 8,700 acres together with 5,000 sheep depasturing on the same for a lump sum of £32,750; that after the making of the agreement the defendant stated that he was unable to transfer the whole of the property the subject of the agreement as about 1,750 acres thereof was the property, as to 700 acres, of his daughter and, as to 1,050 acres, of his son; and that the plaintiffs offered to accept so much of the property as the defendant was competent to transfer, with compensation for so much thereof as the defendant was unable to transfer, but the defendant neglected and refused to perform the contract in whole or in part with or without compensation.