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

Neale v. Solomon [1838] NSWSupC 38

equitable compensation - conveyancing - specific performance - damages, sale of land - deposit, recovery of - law and equity, separation of

Supreme Court of New South Wales

In banco, Dowling C.J., Burton and Willis JJ, 31 March 1838

Source: Sydney Herald, 2 April, 1838[ 1]

Neale v. Solomon. - In this case the plaintiff had purchased some land from the defendant, and subsequent to the payment not being satisfied with the title, a bill was filed on the Equity side of the Court, praying that the defendant might be compelled to fulfil the contract.  The matter was referred to the master, who reported that the defendant could not give a good title, upon which the Court, (the Chief Justice and Mr. Justice Willis,) decreed that the bill must be dismissed, but that the defendant must pay all the costs and charges of the suit, and refund the purchase money.  Mr. Stephen now applied to have that part of the decree respecting the purchase money set aside, as it was competent for the plaintiff to proceed by an action at law to recover compensation for the breach of contract.  After Mr. a'Beckett had been heard in reply, the question for the decision of the Court appeared to be whether or not the Court has authority when a party prays a specific performance of a contract to refuse him what he prays for, and grant him something that he does not pray for.

The Chief Justice and Mr. Justice Burton were clearly of opinion that the decree must be amended, as they could not grant relief that was not prayed for.

Mr. Justice Willis differed from their Honors.  He said he had had some practice in Equity Courts, but he never heard such a decision as their Honors had come to; it was contrary to the principles of Equity, which are to do full justice to every one that comes before the Court, and not drive a party to a Court of Law.  The Court, he considered was not doing Equity between the parties, and if he acceded to the judgment he should be acting contrary to the principle of all the Equity cases he had ever heard.

The Chief Justice directed the officer to amend the decree.


Source: Australian, 3 April 1838


SATURDAY. -- Neale v. Solomon. -- Mr Stephen moved that the minutes of the decree obtained in this cause be amended, as far as regarded the payment back of the purchase money of several allotments of land on the Liverpool road, sold to the plaintiff by the defendant for £74 16s. but to which he had not been enabled to make out a good title.  The bill prayed for the specific performance of the contract alone, concluding with a general prayer for relief, but it did not pray for the payment back of the purchase money, and Mr Stephen therefore contended, that that part of the decree be struck out.  After Mr a'Beckett had been heard in opposition to the motion, and Mr Stephen had replied, their Honors delivered their opinion seriatim.

The Chief Justice was of opinion that as the prayer of the bill was not for the payment back of the money, the plaintiff must be left to his remedy in a Court of Law.  His Honor held that a general prayer for relief in a bill for specific performance of a contract, was not sufficient for the specific relief mentioned in the decree.

Mr Justice Burton was of the same opinion.  The bill prayed for the specific performance of the contract, and that the plaintiff might have his costs, charges and expences [sic], to which he had been put in the matter; but he did not ask for the payment back of the purchase money, and it might be that he did not want it.  His Honor held that the Court was not empowered to grant that which was not prayed for.

Mr Justice Willis differed from his learned brethren, and that when the parties were before the Court upon bill and answer, it was in the power of the Court to do justice between them.  His Honor admitted that it would have been better if the bill had set forth the specific relief mentioned in the decree, but still he was of opinion that the specific relief could be granted under the prayer for general relief.  The learned Judge said that in his opinion the Court had not done full equity between the parties, by sending them to a Court of Law.  Decree to be amended as prayed.



[ 1]See also Sydney Gazette, 3 April 1838.  On specific performance, see also Seagerson v. Grey, Australian, 18 September 1838.

Published by the Division of Law, Macquarie University