Holland v Wiltshire [1954] HCA 42

High Court of Australia Dixon C.J. Kitto and Taylor JJ. Holland v Wiltshire [1954] HCA 42

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 30 Dixon C.J.

This appeal, which comes from the Full Court of the Supreme Court of South Australia, arises from a vendor's action against purchasers of land in which the relief sought was unliquidated damages for loss of the sale. The action was brought by the vendor in the Local Court of Adelaide, a court with only a limited equitable jurisdiction, but, if it be material, bound like other courts of South Australia by s. 28 of the Supreme Court Act 1935-1952, which enacts in effect that in matters where there was formerly any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail so far as the matters to which these rules relate are cognizable by the relevant court: cf. per Starke J. in Moore v. Dimond [5] .

1. (1929) 43 C.L.R. 105, at p. 124.

In the Local Court the vendor was awarded £645, being the difference between the contract price of £3,750 less £2 paid by way of deposit and the amount obtained on a re-sale of the property, viz. £3,103. This judgment was affirmed by the Supreme Court. At the trial the defendants took more than one defence, but in the end the grounds of their appeal from the Local Court's judgment come down to one point. It is that there is a special clause in the contract which governs the matter and that it prescribes the only compensation which the vendor may have, namely the forfeiture of the moneys paid on account of the purchase as liquidated damages, that is to say, the amount of £2 paid as deposit. A printed form was used for the contract, which was made on 13th December 1951. After the blank space for the purchase price, which the parties filled in with the amount of £3,750, there followed in print the words "to be paid in manner following" and then there was left a number of lines so that the amount and date of payment of the instalments might be filled in. The sale, however, was for cash in a month and all that was typed by the parties into the space was, "Two pounds (£2) by way of a deposit and the balance on the day fixed for settlement namely January 14th 1952". Another clause of the contract in fact provided that vacant possession should be given and taken on that date or before if mutually agreed upon by both parties.