Gardiner v Orchard [1910] HCA 18

H. C. of A.

1910.

es,

Sypey,

May 12, 13, 16.

Griffith ©, O'Connor Isaacs JJ.

HIGH COURT (1910.

(HIGH COURT OF AUSTRALIA]

CHARLES HENRY GARDINER 3 APPELLANT ; PLAINTIFF,

AND

RICHARD BEAUMONT ORCHARD . z RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Vendor and purchaser—Conditions of sale—Rescission clause—Objection to tifle— Error or misdescription—Compensation—Unreasonable exercise of power of rescission—Sale of lant and buildings—Subject matter of contract.

A contract ot sale provided for the sale by the defendant to the plaintiff ofa parcel of land " having a frontage of 26 ft. 2in. to George Street by a depth of 60 ft. along Valentine Lane, . . , together with premises occupied by City Bank and store at rear." The conditions of sale provided that the vendor should deliver an abstract of title: that objections to title should be made within seven days from delivery of the abstract : (5) that no error or misdeseription should annul the sale, but compensation should be made or given: and (8) that if the vendor should be unable or unwilling to remove any objection which the purchaser should be entitled to make, the vendor might rescind the contract. After delivery of the abstract, to which no objection was made by the purchaser, it was found that the frontage to George Street occupied by the bank buildings was 25 ft. 9 in. instead of 26 ft, 2 in, as stated in the contract. 'The purchaser having claimed compensation for this defici- ency, the vendor rescinded the contract.

Held, by Grifith C.J., and O'Connor J., that the subject matter of the contract was the land the frontage of which was actually ocenpied by the bank premises.

Held, also, by Grifith C.J. and O'Connor J., that the term " objection" in clause 8 applied only to objections to title; that the claim for compensation