Axelsen v O'Brien [1949] HCA 18

High Court of Australia Latham C.J. Rich and Dixon JJ. Axelsen v O'Brien [1949] HCA 18

ORDER Appeal allowed. Order of the Supreme Court discharged; in lieu thereof declare that the agreement dated 19th June 1945 ought to be specifically performed and carried into execution and order and adjudge the same accordingly. Direct that plaintiffs pay into the Supreme Court within one month £900 and interest at four and three-quarters per cent per annum from 19th June 1945, to date of payment in. Remit action to Supreme Court to give such further or consequential directions as may be necessary for the purpose of carrying this order into execution. Liberty to apply to Supreme Court. Defendant to pay costs of proceedings in the Supreme Court and this Court.

Cur. adv. vult.

The following written judgments were delivered:—

June 22 Latham C.J.

This is an appeal from the judgment of the Supreme Court of Queensland pronounced by Philp J. in an action in which the plaintiffs, twelve members of a firm known as Maryborough Bread Distributors, sued for specific performance of an agreement of sale made in writing on 19th June 1945 for the sale to the firm by the defendant Michael O'Brien of land upon which a bakehouse and shop were erected. The land was part of a larger block of land for which there was one certificate of title. The agreement of 19th June 1945 had been preceded by an agreement also in writing which set out the general arrangement between the parties. The transaction involved O'Brien's going out of business and transferring his plant to the plaintiffs. The earlier agreement of 15th June 1945 expresses acceptance of the offer for sale of the land at £900. The preliminary agreement also provides for the sale of the bakery plant and an Overland motor truck at £580 payable on delivery and possession to be given on 1st July 1945. That £850 was paid on 5th July 1945. The agreement of 19th June 1945 provides by clause 2 that the vendor agrees to sell and the purchaser to purchase the unencumbered fee simple in possession of the land described for £900 payable as follows:—(a) Upon the consent of the Treasurer being given to the sale the vendor shall execute the nomination of trustees over the land to trustees appointed by the purchaser and shall hand such nomination of trustees and all other documents to enable same to be registered to the solicitors for the purchaser upon the purchaser paying to the vendor the sum of £500 and upon such trustees executing a bill of mortgage in favour of the vendor securing payment of the balance of the purchase price, namely £400, which bill of mortgage shall contain the following terms and conditions:—(i) The purchaser shall pay to the vendor the sum of £400 by equal quarterly payments of £50 each the first to be paid within three months after the date of the consent of the Treasurer. (ii) The purchaser shall also agree to pay to the vendor interest at four and three-quarters per cent on so much of the £400 as remains unpaid. (iii) The bill of mortgage shall contain such other terms and conditions as shall be required by Corser Sheldon & Gordon of Maryborough, solicitors, not inconsistent with the above terms. The agreement also provides by clause 3 that all rates, taxes and other outgoings shall be paid and discharged by the vendor up to 30th June 1945 and after that date by the purchaser. By clause 6 the vendor was to pay all necessary survey fees to enable the land to be transferred to the purchaser and pay the costs of registration on such plan of survey. By clause 8 it was provided that if the consent of the Treasurer was not given to the sale the agreement should be null and void and all moneys paid refunded by the vendor to the purchaser. By clause 9 the vendor agreed to transfer the land to such nominee as might be appointed by the purchaser and to execute the transfer in such form as the purchaser required.