National Trustees Executors and Agency Company of Australasia Limited v Dwyer [1940] HCA 5

REPORTS OF CASES

DETERMINED IN THE

HIGH COURT OF AUSTRALIA

[HIGH COURT OF AUSTRALIA.]

THE NATIONAL TRUSTEES EXECUTORS AND AGENCY COMPANY OF AUSTRAL- | APPELLANTS ;

ASIA LIMITED AND ANOTHER .. | DEFENDANTS, AND DWYER AND OTHERS . 4 ; . ResponveEnts. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Executors and Administrators—Powers—Duties—Failure to get in debt—Discretion V1, C. or A. to give time—Exercise in good faith—Limitation of actions—Action to recover 939.1940, legacy—Based on devastavit—Differing periods of limitation—Vendor and = ~~ purchaser—Vendor's remedies on purchaser's default—Supreme Court Act 1928 MELBOURNE, (Vict.) (No. 3783), sec. 82*—Trustee Act 1928 (Vict.) (No. 3792), secs. 3, 1939, 15*, 61, 67—Property Law Act 1928 (Vict.) (No. 3754), sec. 304—Transfer of Oct. 17-19, 23. Land Act 1915 (Viet.) (No. 2740), Twenty-jifth Schedule, Table A—Unemployed 1940,

Oceupiers and Farmers Relief Act 1931 (Viel.) (No. 3962), sec. 21—Financial yy, 30, Emergency Act 1931 (Vict.) (No. 3961), sec. 283—Financial Emergency (Amend- — ——~ ment) Act 1931 (Vict.) (No. 3970). satan oo Evatt and * By sec. 82 (1) (c) (vm) of the . . . All . . . actions in the McTiernan JJ.

Supreme Court Act 1928 (Vict.) it is nature of actions on the case: Six provided that "actions suits or other years."

proceedings as herein set out shall be By sec. 15 of the Trustee Act 1928 commenced within the times herein (Vict.) it is provided that executors, expressed after the causes of such administrators and trustees "may, if actions suits or other proceedings andas . . . they think fit .

H. C. or A. 1939-1940, se Nation. Tre: EXxEcvror: anv AGENCY Co. oF AUSTRALASIA Lap. r. Dwyer.

HIGH COURT [1939-1940.

The right to the balance of purchase money under a contract of sale of land formed part of the residuary estate of a testatrix. It fell due on Ist May 1930 pursuant to the terms of the contract, which incorporated the pro- visions of Table A of the Transfer of Land Act 1915 (Vict.). Being unable to pay the balance on the due date, the purchaser requested the executors to postpone the date for payment. This request was refused, but short extensions were granted from time to time till February 1931 to allow the purchaser to arrange finance. As a consideration for such extensions, the purchaser specially agreed to pay to the executors interest at the rate of 7 per cent per annum in lieu of 44 per cent per annum which hitherto he had been paying ; this agreement was made by the parties in apparent ignorance of and despite the fact that under a condition in Table A the purchaser, being in default with the payment of the balance, was bound to pay interest at 8 per cent per annum. In 1931 owing to the prevailing adverse economic conditions, the executors concluded that the land the subject matter of the contract was unsaleable and difficult to let, and they did not exercise their power under the contract, whereby on default by the purchaser they were entitled to rescind the contract and resell the land and recover any deficiency, At the end of 1931, moratorium legislation came into operation in Victoria, and, in substance, afforded the purchaser the power to prevent the executors pursuing their remedies for non-payment by the purchaser. 'The purchaser after 1931 fell into arrears with his interest, and on a threat of proceedings in September 1936 he obtained a stay order under the provisions of the Farmers Debts Adjustment Act 1935 (Vict.), the effect of which was to stay any proceedings against him. In March 1938 the Farmers' Debts Adjustment Board made an arrangement with the executors whereby arrears of interest were extinguished, £1,630 was paid by the board to the executors on account of principal and, upon a transfer by the executors of the legal estate in the land to the pur- chaser, the latter granted a mortgage to the executors to secure the then balance, which was to be paid on Ist February 1943, together with the interest thereon at 4 per cent per annum. A number of residuary beneficiaries in 1938 commenced proceedings in the Supreme Court of Victoria charging the executors with breach of duty in failing to get in the balance of purchase money on its due date and in failing to exercise their powers under the contract.