MAWBEY v JANINE PTY LTD [No 1] [1990] NSWCA 120

MAWBEY v JANINE PTY LTD [No 1] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY, and HANDLEY JJA 24 April 1990, 24 April 1990 [1990] NSWCA 120

VENDOR and PURCHASER — contract — sale of land and stock sale proceeds to completion — later discrepancy discovered between counterpart copies of stock contract — one copy shows stock number — one copy in blank — position of parties after completion by conveyance — whether caveat by vendors to protect their claim to a continuing interest in the land should be continued — trial judge (Hodgson) refuses to do so on grounds of weakness of the legal point to be argued and balance of convenience — held: (on summons for leave to appeal to the Court of Appeal) Leave to appeal should be refused applying the authority of the High Court of Australia in Svanosio vy McNamara and Another (1956) 96 CLR 186 and Taylor and Ors v Johnson (1982) 151 CLR 422.

Kirby P At the stage which argument reached yesterday, I was of the tentativeopinion that leave might be granted to allow the claimant to challenge the two bases upon which Hodgson J rested his decision: namely, the arguability of the matter before him and the balance of convenience.

However, the Court was then taken to the decision of the High Court of Australia in Svanosio v McNamara and Anor (1956) 96 CLR 186 which was not called to the notice of his Honour. That decision, which was raised by the Court, in my opinion stands in the way of the claimants. It is not relevantly affected by the later decision of the High Court in Taylor and Ors v Johnson (1982) 151 CLR, 422. Accordingly, it is my view, although for reasons different from those which Hodgson J gave, that the conclusion which his Honour reached was correct. The order which he made was right. In this Court, at least, the claimants cannot succeed.