McWilliam v McWilliams Wines Pty Ltd [1964] HCA 6

High Court of Australia McTiernan, Taylor and Menzies JJ. McWilliam v McWilliams Wines Pty Ltd [1964] HCA 6

ORDER Decree of the Supreme Court varied by omitting therefrom the declaration therein contained and the first order thereinafter immediately appearing and by substituting therefor a declaration that the appellant (defendant) is bound by an obligation implied in the contract mentioned in paragraph (8) of the statement of claim to do all such acts and execute all such documents as may be reasonable and proper on his part to enable the respondent (plaintiff) company to apply to the Water Conservation and Irrigation Commission for its consent to a transfer to the company, or as it may direct, of the land comprised in Crown Grant Registered Vol. 5831 folio 19 and an order that within fourteen days after service upon him of an office copy of this decree as amended the appellant (defendant) at the cost of the company do all such acts and execute all such documents as may be reasonable and proper as aforesaid. Subject to this variation appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1964, Feb. 25 McTiernan and Taylor JJ.

We are of the opinion that subject to some variation of the order made in the Supreme Court this appeal should be dismissed. The basis upon which the order below was made was that in the events which happened the appellant became a trustee of the farm land in question upon trust, during the subsistence of the contract of 6th July 1931, to permit the respondent company to be and remain in possession thereof until the Water Conservation and Irrigation Commission should consent to a transfer to the company and, thereafter, upon trust for the company absolutely. "If the contract should go off through refusal of consent to the transfer the trust" would, according to the learned judge of the first instance, "come to an end". But whether his Honour ultimately thought that the appellant became a trustee of the land for the company by reason of the continued subsistence of the contract or by reason of the declaration of trust subsequently executed on 14th December 1932 does not clearly appear. We entirely agree with his observation that there was implicit in the contract—which evidenced the sale of a number of parcels of land most of which were not subject to the provisions of the Crown Lands Consolidation Act, 1913 N.S.W. and which provided a single consideration for the sale—a condition that, in so far as it related to the sale of the farm land in question, it was subject to the consent of the Commission being obtained and that, this being so, it was ineffective to constitute the appellant a trustee of the land for the company notwithstanding the fact that the obligation to provide the specified consideration was fully satisfied. But his Honour proceeded: "As he was only a bare trustee of the land, the defendant could not have given to the company a greater interest than that to which it was entitled under the contract of sale, and it is apparent from the terms of the deed that it was neither his intention, nor the intention of the company, that he should do so. Under the contract, the company was entitled to immediate possession of the land and would become absolutely entitled when the consent of the Commission should be given to the transfer. The effect of the deed, therefore, was to constitute the defendant a trustee of the farm upon trust, during the subsistence of the contract, to permit the company to be and remain in possession thereof until the Commission should consent to the transfer of the farm to the company and thereafter upon trust for the company absolutely. Since the contract was valid the declaration of trust, which created no further interest, was also valid".