Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18

High Court of Australia Barwick C.J. Stephen and Jacobs JJ. Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18

ORDER Appeal allowed with costs. Order of the Supreme Court set aside and the matter remitted to the Supreme Court of New South Wales for further hearing.

Cur. adv. vult.

The following written judgments were delivered:—

May 14 Barwick C.J. and Jacobs J.

On 4th May 1972 Mrs. Grace May Phillips agreed to sell to Neeta (Epping) Pty. Ltd. approximately 202 acres of land at Luddenham outside Sydney. The price was $190,000 payable as to $19,000 by way of deposit on the signing of the agreement, as to a further $56,000 in cash upon completion and as to the balance of $115,000 by way of first legal mortgage to the vendor or her nominee in the form annexed to the contract of sale. In the schedule to the contract dealing with the manner of payment of the balance of purchase price it is stated that completion of the contract should take place at or before 15th June 1972. The contract provided by cl. 12 that the property was sold with vacant possession and the vendor agreed to give the benefit of possession to the purchaser at the date of completion. At the date of contract one Tate was the lessee of the land under a registered lease expiring on 15th April 1976. Condition 2(w) of the lease provided:

That the lessor may at any time upon giving the lessee four weeks' previous notice in writing re-enter upon and retake possession of the demised premises whereupon the lessee shall be entitled to compensation at the rate of one hundred and twenty five dollars for each complete calendar month from the date of such entry to the 15th day of April, One thousand nine hundred and seventy six.

Tate as the dairy farmer in possession was the holder of a registration certificate from the Dairy Industry Authority and thereby was entitled to supply to that authority the quota of milk referred to in cl. 26 which provided as follows: