Woodroffe v Box [1954] HCA 22

High Court of Australia Webb, Fullagar and Kitto JJ. Woodroffe v Box [1954] HCA 22

ORDER Appeal allowed with costs; order of the Supreme Court of Tasmania discharged except insofar as it certifies for the attendance of counsel. In lieu thereof question (1) answered Yes and question (2) not answered: plaintiff's costs of the originating summons to be paid by the defendants.

Cur. adv. vult.

The following written judgments were delivered:—

May 4 Webb J.

This is an appeal from an order of the Supreme Court of Tasmania (Morris C.J.) made on a summons for the determination under O. 61 of the Rules of the Supreme Court of Tasmania of questions arising under an agreement in writing dated 15th November 1946 made between the late James Murdoch MacLennan who then resided at Auburn in Victoria and the appellant Frank Woodroffe who then resided and still resides in Launceston, Tasmania. MacLennan was the owner of premises used as a drapery store situated at the corner of Brisbane Street and the Quadrant in Launceston and had leased them to the appellant in July 1943. The agreement in question recited that, in consideration of £100 paid by the appellant to MacLennan, the latter agreed among other things that his executors would "upon the death of the survivor" of MacLennan and his wife give to the appellant "the right of first refusal" to purchase the leased premises for £13,000; or should there then be in existence any statutory limitation of the price at which real estate might be bought or sold, then for £13,000 or the maximum price allowable by such statutory limitation, whichever was the lower. It was further agreed that in the event of purchase pursuant to this right of first refusal the sale should be for cash and the £100 should be credited on account of purchase money; but should there be no purchase the £100 should become the absolute property of "the owner". "Owner" was not defined by the agreement to include the executors or administrators of MacLennan; but no point was made of this in argument.