High Court of Australia
il C.L.R.) OF AUSTRALIA.
(HIGH COURT OF AUSTRALIA.]
'RANK JOSEPH LAPPEN MEASURES, . APPELLANT;
DEFENDANT, AND MARY McFADYEN . ze ' - . RESPONDENT; PLAINTIFF,
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Property Act 1900 (N.S. W.) (No. 25), secs. 51, 52—Landlord and tenant— Transfer of land—Breach of covenant by lesace—Right of transferee of land to sue lessee for breach of covenant in lease which is complete before transfer— Covenant to erect and complete alterations forthwith—Meaning of ' forthwith."
2 Pleading —Damages assessed generally upon good and bad counts—Trial de novo—Costs—Admission by party at trial—Defendant mistakenly admitting __ liability—Defect appearing upon the record—A ppeal.
A right to sue for damages for a breach of covenant, not being a continuing breach, which is complete before transfer, does not pass to the transferee of Jand under sees. 51 and 52 of the Real Property Act 1900. The object of the 'Act was to transfer the estate or interest of the transferor in the land with all the rights incidental to present and future possession, but not mere choses in action in respect of past and completed breaches of covenant.
A lessee covenanted to erect and complete alterations and additions of the value of £500 upon the demised premises, and to execute perform and carry out such alterations and additions " forthwith."
Held, that the word "forthwith" in this covenant could not be extended to include a period of 21 months after the date of the lease.
Where damages have been assessed generally upon a good and bad count, the practice at common law is to direct a trial de novo, and not to give either _ party the costs of the first trial.
~ te o
H.C. or A. 1910. Sypxey,
Dec. 9, 12, 13, 16.
Griffith O.J., O'Connor and Isaacs JJ.
H.C. oF A.
1910.
ee, Measures
v.
McFapyey.
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