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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Lucas and Payne (1828) Sel Cas (Dowling) 602; [1828] NSWSupC 70

contracts, equitable rescission, insolvency, effect on contract

Supreme Court of New South Wales

Trial, 1828[1 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 104]

[Where a contract was entered into by builders to erect a Gaol for the Crown, and the builders became insolvent before they proceeded with the work   Held that the Court could not rescind the contract.]

[p. 103]

Rex v Lucas & Payne

The Defendants had entered into a Contract with the Crown to build a Gaol at Newcastle and had received [p. 104] 500£. in advance and had entered into securities to complete the contract by December next.  Both Defendants had become insolvent without completing the contract.  In fact the foundations only of the Gaol had been made.  There was no possibility of their being able to complete the contract by December and therefore.

Sampson S.G. under these circumstances applied to the Equity of the Court to rescind the contract, in order that the public service might not be prejudiced.

The Court however thought that they had no jurisdiction to interpose and afford relief in case where the Trustees might still take to the contract and perform it.

Relief Refused


[1 ] From its position in the Select Cases, it is likely that this trial was held between September and November, 1828.

Published by the Division of Law, Macquarie University