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. Accordingly, I would propose that the summons for leave to appeal be dismissed with costs. Priestly JA I agree with that. Ironically, the view I have formed is that his Honour was probably wrong in his view about the balance of convenience. I was persuaded yesterday by Mr Heydon of that, although I do not need to express a final view whether the error there went to the extent of an error in principle or the kind this Court would become involved with. But, on the other hand, what is said at 198 of Svanosio v McNamara seems to me to make clear that what Hodgson J thought was an arguable, although weak, case is not really an arguable case at all. It has been pointed out before us that the passage upon which I particularly rely was not, strictly speaking, necessary to the decision in Svanosio v McNamara. I think that submission is probably correct. Nevertheless, the passage, to my mind, expresses the law as it has long been understood and I am prepared to base my opinion in this case on the correctness of what is there said. I agree with the orders proposed. 2 UNREPORTED JUDGMENTS Handley JA I also agree. I would merely add that the two contracts for the sale of land were complete and regular on their face and what is sought on behalf of the claimant is to invalidate those contracts by reference to an extrinsic fact; 5 Summons dismissed with costs. Counsel for the Claimant: JO HEYDON QC / P BRERETON Solicitors for the Claimant: FLASHMAN and Co 10 Counsel for the Opponent: FJ LEVER Solicitors for the Opponent: MARSHALL MARKS KENNEDY