Cooper v Ungar [1958] HCA 9

Appl

Cons: Ahdowny J Boag & Son

Kirk QAR!

Brewin (1559}2 Brewing v Investments

2001) 10 ras 26

H. C. or A.

1958. —

Sypney, Mar. 28.

Dixon C.5., 'McTiernan, Williams,

'YLaylor JJ.

HIGH COURT

[HIGH COURT OF AUSTRALIA.)

COOPER ; é . ; : 3 s

DEFENDANT, AND

UNGAR . ni d 3 5 Butte PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Vendor and Purchaser—Sale of land—Terms and conditions of sale—Fa purchaser to comply therewith—Provision for vendor to resell and recover (if any) as liquidated damages—Contractual right and not one in der contract—Resale at less than contract price—Action to recover deficiency—| implied that power to resell and recover deficiency conditional upon resale reasonable time—Defence that resale not within reasonable time and r recover lost—Resale within reasonable time established if such condition Vendor entitled to recover.

In a contract dated 4th May 1951 for the sale of land wherein U. was v and C. purchaser, cl. 14 provided :— If the purchaser shall fail to o with these conditions or any of them, or with the terms of sale, all m which the purchaser shall have paid . . . on account of the purchase sh absolutely forfeited to the vendor, and the vendor shall be at t without any notice to the purchaser, to resell the property by publi or private contract, together or in lots, for cash or on credit, and

rescind any contract for sale, buy in at any auction and resell, and the det (if any) arising on such sale and all expenses of and incidental to any or attempted sale shall be recoverable by the vendor from the pu liquidated damages."

pletion not later than 31st January 1952. U., acting in relia cl. 14, attempted to sell the property against him, first by auction by private treaty. Notwithstanding persistent efforts by U. all a} resale proved abortive until a private sale was effected in June 1953. U sued C. pursuant to cl. 14 to recover the sum of £6,125 being the between the price contracted to be paid by C. and the price ol resale in 1953. C. claimed that the right given to the vendor to subject to an implied condition that it should be exercised within