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

Fisher v. Yeomans [1841] NSWSupC 80

auction - land sales - misrepresentation

Supreme Court of New South Wales

Burton J., August 1841

Source: Sydney Herald, 4 August 1841


            This was an action similar to the last, which was brought to recover the sum of £60, the purchase money of an allotment of land, also sold by auction for the plaintiff to the defendant, at the same sale as in the last case. The defendant pleaded first, that the plaintiff did not make a sufficient title to the land sold, and secondly, that there was a misrepresentation in the plan of the land exposed for sale.

            Mr. FOSTER opened the pleadings.

            The SOLICITOR-GENERAL stated the case, and relied upon the pleas in this case not requiring the plaintiff to prove the signing the condition of sale.

            Mr. Pilcher, the solicitor, proved that he was employed by the plaintiff and by all the purchasers at the sale, to examine the plaintiff's title to the land sold, and that he approved of the title on the part of the defendant, and holds for the defendant a conveyance of the defendant's allotment from the plaintiff.

            Upon his cross-examination, Mr. Pilcher said that the original deed of grant of all the land is to Potter Macqueen, who conveyed to the plaintiff in trust for sale. The title of the plaintiff rested upon a power of attorney from England, and subsequent to the execution of the conveyance to the defendant the plan of all the allotments was altered.

            Mr. WINDEYER, for the defendant, moved for a nonsuit, on the ground that the plaintiff had not shewn any title to the lot of land marked on the plan exhibited to the defendant at the sale. The learned gentleman contended that there was no proof that the plans approved of by Mr. Pilcher were those by which the land was sold.

            Mr. Justice BURTON waived the point, and

            Mr. WINDEYER addressed the assessors, relying upon the misdescription of the land sold.

            The witnesses for the defendant proved that the land alleged to be conveyed to the defendant did not correspond with the land exhibited upon the map, by which the allotments were sold, inasmuch as the land conveyed was represented on the map exhibited at the sale as facing and coming up to a street marked upon it, whereas there was a strip of ground lying between that street and all the land, so that the land bought by the plaintiff was made to recede from the street, and into a hollow in a place which was sometimes overflowed by an adjoining river. The sale took place on the ground.

            The SOLICITOR-GENERAL replied for the plaintiff, and contended that there was no misdescription proved, and that even if there any proved, the conveyance by the plaintiff to the defendant was conclusive against the defendant.

            Mr. Justice BURTON in charging the Assessors said, that there were two main points for their consideration. 1st, Whether there were any misrepresentation proved to their satisfaction: with respect to this point, if the land sold were represented at the sale as abutting on a street, whereas it did not in reality so abut, there could be no doubt that this was a misrepresentation; and, therefore, if they believed the evidence for the defendant, they had only to consider the 2nd point, whether the misrepresentation were material; and with respect to this point, if they considered that the defendant would not have purchased the land knowing the misrepresentation, then it was a material misrepresentation: however, the counsel for the plaintiff had also relied upon a conveyance of the land having been executed from the plaintiff to the defendant; but that conveyance was only held by an attorney who had acted for both parties to it; it was never accepted by the defendant, it would not be given up without payment of the consideration for it, and therefore it was rather [?]     than an absolute conveyance, by which the defendant was to be bound; besides, if there were a valid and binding conveyance, the declaration ought to have alleged it. If therefore the Assessors believed that there was a mate[r]ial misrepresentation, and that the defendant had not accepted the conveyance, they should find a verdict for him; but even though they believed that there was such misrepresentation, [y]et if they also believed that the defendant had [accepted?] the conveyance, they should find a [v]erdict for the plaintiff.

            The Assessors immediately found a verdict for the defendant.

            Counsel for the plaintiff: the Solicitor General and Mr. Foster; for the defendant, Mr. Windeyer. 

            Attorney for the plaintiff, G. C. Turner; for the defendant, Carr, Rogers, and Owen.

Published by the Division of Law, Macquarie University