Axelsen v O'Brien [1949] HCA 18

80 C.L.R.] OF AUSTRALIA. 219

{HIGH COURT OF AUSTRALIA.]

AXELSEN AND OTHERS . : . APPELLANTS ; PLAINTIFFS, AND O'BRIEN . ' Z . : 5 : . RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

Specific Performance—Sale of land—Agreement—Balance of purchase moneys to H.C. or A. be secured by mortgage—Terms to be settled by solicitors—Trustees to be nominated 1949. by purchasers—Survey—Refusal of vendor to carry out agreement—Readiness = ~~ and willingness of purchasers—Remedy—Certainty of contract—Want of BRISBANE, matuality. Tune 21, 22.

By an agreement for the sale of land for £900, part of a larger block of land etn held under one certificate of title, it was provided that, upon the consent of Dixon JJ. the Treasurer being given, the vendor should execute a nomination of trustees over the land to trustees appointed by the purchasers upon their paying £500 and upon the trustees executing a mortgage securing the balance of the purchase moneys and containing such other terms and conditions as required by the solicitors for the purchasers. The' agreement also made provision for delivery of possession and the vendor paying survey fees to enable the land to be transferred. No survey was ever made and although trustees were appointed their names were never notified to the vendor. Possession was not given on the due date and the vendor repudiated on the ground that the purchase moneys were not paid. The purchasers then advised the vendor of their willingness to proceed with the sale and sent £500 which was refused.

In a suit for specific performance by the purchasers, Held that there was a concluded contract as the settlement of the terms

of the mortgage and the nomination of trustees did not depend upon further agreement between the parties.

Held, further, that a decree should be made for specific performance of the contract as the conditions not performed by the purchasers were merely the subsidiary means of carrying out the contract.