Ray v Davies [1909] HCA 51

160 HIGH COURT [

(HIGH COURT OF AUSTRALIA.)

RAY AND ANOTHER ' ; - APPELLANTS; DEFENDANTS, .

AND

DAVIES if 4 > = ss h ¥ RESPONDENT. PLAINTIFF, i)

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Vendor and purchaser—Contract for sale of land—Vendor to procure loan of | 1909, balance of purchase money—Implied chligation on purchaser to execute mort _— gage-—Qualified refusal to execute—Rescission by vendor—Specific performance,

Syp : Aug. 20.

A contract for the sale of land provided for payment of a deposit at once, and the balance of the purchase money by instalments extending over eighteen

Bae years, and also provided that, if the vendor should arrange a mortgage for the Isaacs JJ. balance on the same terms as those contained in the contract as to interest

and payment of principal and interest, '* such mortgage to be for a term of not less than three years," the vendor should pay the costs of the mortgage and half the costs of its discharge. 'The purchaser paid the deposit and went into possession, and paid interest and instalments in accordance with the con- tract for eighteen months. The vendor then arranged for a mortgage in accordance with the contract, but the purchaser refused to execute it unless the vendor paid a certain sum claimed by the purchaser for costs of the mort- gage. The vendor contending that he was not liable, declared his intention to rescind the contract, and issued a writ of ejectment.

In a suit by the purchaser against the vendor : e

Held, that, assuming that there was an implied obligation on the part of the purchaser to execute a mortgage if arranged by the vendor, the refusal to execute the mortgage, whether the purchaser's claim for costs was justified or not, being only a qualified refusal and not going to the root of the contract, did not entitle the vendor to rescind, and the purchaser was therefore entitled to an injunction to restrain the action of ejectment and to a decree for specific performance, subject to payment of compensation if necessary.