Trustees, Executors & Agency Co Ltd v Peters [1960] HCA 16

High Court of Australia McTiernan, Kitto and Menzies JJ. Trustees, Executors & Agency Co Ltd v Peters [1960] HCA 16

ORDER Appeal allowed with costs. Decree of the Supreme Court set aside, except in so far as it relates to amendments to the statement of defence and the costs of such amendments. In lieu thereof, decree as follows:

(1) Declare that the option of purchase referred to in par. 6 of the statement of claim was effectually extended by the deed mentioned in par. 7 thereof, and was validly exercised on 28th September 1956 by the notice mentioned in par. 9 thereof.

(2) Declare that upon the true construction of the memorandum of lease referred to in the statement of claim the sale which took effect by the exercise of the said option is a sale on and subject to such of the terms and conditions of sale contained in the form issued by the Real Estate Institute of New South Wales and being Exhibit K in this suit as were applicable in the circumstances of the said sale to a sale for cash of an estate in fee simple in land under the provisions of the Real Property Act 1900 N.S.W. made on 28th September 1956.

(3) Declare that the contract of sale which took effect by the exercise of the said option ought to be specifically performed and carried into execution, and order and adjudge the same accordingly.

(4) Order that the defendant pay the plaintiffs' costs of the suit up to and including this decree.

Remit the cause to the Supreme Court with liberty to all parties to apply to that court for consequent directions and otherwise as they may be advised.

Cur. adv. vult.

The following written judgments were delivered:—

1960, April 4 McTiernan J.

I am of the same opinion as Kitto J. and Menzies J. and agree in their reasons.

Kitto J.

In 1951 the appellant Chislett and one Mullins became tenants to the respondent of a part of certain land in the whole of which the respondent was the registered proprietor under the provisions of the Real Property Act, 1900 N.S.W. of an estate in fee simple under two Crown Grants. The tenancy was regulated by the provisions contained in an unregistered memorandum of lease. The term agreed upon was five years from 14th May 1951. The memorandum contained a provision, in cl. 5, in the following terms: " The Lessees shall have the right at any time prior to the First day of February, 1956 by giving three months written notice to the Lessor to that effect, to purchase the whole of the land and improvements comprised in the two said Crown Grants for the sum of Three thousand pounds (£3,000 0s. 0d.) in which case the following provisions shall apply: (a) With the notice of exercise of option the Lessees shall pay a deposit of Three hundred pounds (£300 0. 0d.) and the balance shall be paid in cash on completion of sale which shall take place at the expiration of the said period of three months notice, but not before 1st July, 1952. (b) Such sale shall be on and subject to such of the usual terms and conditions of sale of the Real Estate Institute of New South Wales as shall be applicable to sales of land of like tenure under like circumstances". It will be observed that this provision relates to the whole of the land in the two Crown Grants and not only to the part which was the subject of the tenancy.