Skip to Content

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

Hall v. Borton [1841] NSWSupC 116

equity -  Hunter's Hill -  specific performance -  part performance doctrine -  Statute of Frauds

Supreme Court of New South Wales

Dowling C.J., 2 December 1841

Source: Sydney Herald, 2 December 1841



            BEFORE His Honor the Chief Justice.

            The Solicitor-General, with whom was Mr. Laing, were for the complainant, and Mr. Broadhurst for the defendant. Mr. Laing read the bill, and Mr. Broadhurst the answer.

            It was alleged by the bill, that the complainant Hall, in the month of September, 1834, had made an agreement with one Thomas Wood, since dead, for the purchase of about 45 acres of land, at Hunter's Hill, Lane Cove, for the price of £200; that the agreement was in the handwriting of Wood, and to the above effect. That the complainant had paid £30, part of the purchase money, for which he (Wood) had given a receipt; and that soon after the date of the agreement, he had discovered that there was a mortgage on the land, which prevented Wood from making a good title. The complainant also averred, that although Wood was afterwards able to pay off this incumbrance, and was frequently requested to do so, he had always refused. Hall alleged that he had made many and great improvements on the property, amounting to £200 in value; and that Wood having in September, 1839, [re]deemed the mortgage, had no further obstacle to prevent him from specifically fulfilling his contract. Subsequently to this, in January, 1840, Wood had died, leaving a will, by which, among other property, he devised the property in question in trust, to be sold, and the proceeds to be placed by the executors, the defendants Borton and Weavers, in the Saving's Bank, to certain purposes therein mentioned. The plaintiff averred he had always been ready to fulfil his part of the contract, had frequently and unavailingly called on the executors and Thomas Wood, the heir, to fulfil the contract which had been entered into by Wood the elder with the complainant, and now sought by the present proceedings, a specific performance of the alleged contract.

            Thomas Owen, examined by the Solicitor-General - Proved the agreement, which he said had been executed and witnessed in his presence.

            Mr. Parry Long, examined by Mr. Laing - Knew the deceased, and had seen an agreement in writing, purporting to be for the sale of land. It was in Wood's hand-writing, but not signed by either party. Witness went to Wood to tender a sum of £20 on the part of Hall, which Wood refused to receive. Knew the neighbourhood in which the land stood, which had lately very much risen in value.

            John Johnson examined by the Solicitor-General - Knew the parties in the cause, and in 1834 was living in the neighbourhood of the property; was aware that the land in question had been much improved in Mr. Hall's time, by fencing, stumping, and the planting of orchards. Mr. Hall was still on the farm.

            Cross-examined by Mr. Broadhurst - Hall first came up to the property about seven years back, which was in 1834. Witness was constantly living at Lane Cove from this time until 1839. Had there kept a public-house. Knew Hall as a neighbour, but did not know that he was hiding at Lane Cover from his creditors. Hall had five or six men at times improving the farm. Never saw young Mr. Wood on the farm when Hall was there; nor did he (witness) know that Hall had been turned out of the farm by young Mr. Wood. Remembered hearing of Wood's death; and it might have been six months after this event that witness, with Hall, again went back to the farm. When they got back to the farm, one of the young Mr. Woods was standing on the farm, near the house. Heard no objection to Hall going back, and saw no resistance made by young Mr. Wood to Hall returning. Hall had put a pair of handcuffs on the door, and whilst he was in Sydney, Wood had put a padlock on the handcuffs. When Hall returned, he called on witness and others to bear witness that he (Hall) used no violence in taking possession of the house, and then forthwith unlocked the handcuffs, and Wood's padlock, not being put through the staple, fell to the ground. Wood then took his bundle and went away, observing, that the quarrel was not a personal one, the property being in dispute, and that the law must decide it.

            William Oliver, examined by Mr. Laing - This witness stated that he knew the property, and recollected Hall being upon it, and superintending the fencing and stumping of some of the land, as well as the planting of many young fruit trees, which must have been very expensive; could not say how long Hall was there, but he had now a man there in possession.

            Cross-examined by Mr. Broadhurst -  Had always lived in Lane Cove since Hall came there; could not say how long Hall was there; knew that Hall had left the farm and lived a long time in Sydney, but did not know that after this he had ever returned to the farm to live there for a permanency, although his family had done so.

            William Henry, examined by the Solicitor-General -  Was a settler at Lane Cove, and had been in the Colony for forty years and more; he knew the property in question, and remembered Hall, about seven years ago, going with his family to live there; could not say how long he (Hall) continued there before he returned to Sydney; knew old Wood's perfectly well, and had had many conversations with him; on one occasion, when witness had requested Wood to assist in making a road between his and witness's farm for their joint convenience, and Wood answered he could not do so: for he had now no further interest in the farm, having sold it to Hall.

            Cross-examined by Mr. Broadhurst -  After Wood had said this he (witness) had frequently seen his family there; had seen some of Wood's sons living on the farm after the return of Wood himself to Sydney.

            On re-examination by the Solicitor-General, the witness stated that he did recollect a time when no one was living on the farm; knew that Hall's man had run away and left the farm; had never seen Hall and Wood's family all living on the farm together.

            Mr. Hickson stated that old Wood had not for a long time after the sale to Hall been in a situation to convey the fee, by reason of the mortgage already mentioned, and that he (witness) had heard that the mortgage had been paid off before Wood's death.

            This was the complainant's case.

            The defendant then called Mr. Cha[r]les Wood, the son of the testator, who, being examined by the Solicitor-General on the voir dire, admitted that he was interested in the event of the suit, and was there[fo]re rejected on that ground.

            Mr. Broadhurst, for the defendant, then said, that a more suspicious case never c[am]e into a court of justice, and that it was impossible that on the evidence his Honor could decide that there had been any contract between the parties, old Wood and Hall. A negotiation or inchoate contract might have been entered into; but it was manifest there had been no such conclusive contract as would entitle the complainant to a specific performance on the part of the executors. Even admitting, for the sake of further argument, that there had been something like a contract, still, as it had related to a sale of land, there was not any such part performance as would bind the defendant. The complainant had made out no clear case for his Lordship's interference, but had relied on the possibility of catching a decree out of the general confusion of the facts. The receipt, which had been put in of part payment, had no reference to the alleged agreement, the terms of the former relating altogether to a different transaction; and therefore he, Mr. Broadhurst, contended on the authority of decided cases, that as the evidence had no direct and satisfactory reference to the contract, it could be of no avail [i]n proving the plaintiff's case. The case of Savage v. Carroll, in the first volume of Ball and Beattie's Reports, fully established this position. The learned gentleman then went on to contend, that the very fact of the plaintiff's having waited until the death of Wood the elder, was by itself ground for considerable suspicion; and that, from the fact of that party now being where he could file no cross bill against the complainant, his (Woods) family were entitled to the utmost consideration of the Court of Equity. There was no evidence to show that Hall had ever been put in possession by Wood, or that there had been any part performance of the asserted contract, binding Wood or his representatives. It was an essential principle in all procedings at law or equity, that plaintiff's should exercise due vigilance and alacrity in making their claims; but so far from the present plaintiff having complied with this rule, he waits for eight years until old Wood dies, and then, not because he confides in the strength of his right, but urged by a hope of success amidst the general confusion of the facts, and the disadvantages at which he has the executors, he determines on an attempt at possessing himself of land, which had risen so much in value. The greatness of the prize, suggested the boldness of the attempt.

            The Solicitor-General, for the plaintiff, contended, that not only had there been a contract, but Wood had taken money from the plaintiff in part payment of the purchase money of the property. Hall, on the strength of the contract, had gone to live on the property, and according to the evidence of Johnson, had evidently lived there for a period of four or five years. During all this time Wood had suffered Hall to remain there undisturbed; bringing no action for trespass, and demanding no rent, which if there were anything in the learned Council's argument on the other side, he (Wood) would in all human probability have done. This conduct of Wood on any other supposition than that he had sold Hall the land, was perfectly inexplicable. As to his (the Solicitor-General's) friend's argument about the delay, there was nothing in that; time was not the essence of a contract; and so long as the plaintiff had not been improperly dilatory in making his claim, he could not now, on such a ground, be shut out of his right to have a specific performance of the contract, which had been so satisfactorily proved. The learned counsel then addressed himself particularly to the effect of the testimony of the different witnesses, as proving the contract set out, and concluded by expressing his confidence that it would be found more than sufficient to induce his Honor to grant the prayer of the complainant's bill.

            On the case being concluded, his HONOR deferred his judgment to a future day.

Dowling C.J., 10 December 1841

Source: Sydney Herald, 11 December 1841



Before Sir James Dowling, Chief Justice.

John Hall v. Edward Borton, Charles

Weavers, and Thomas Wood.

            His Honor delivered judgment on this case as follows:--

            This was a bill for the specific performance of an agreement entered into by Thomas Wood, deceased, with the complainant, for the sale of 46 acres of land, situate at Lance Cove, in the district of Hunter's Hill, and about 8 miles from Sydney. The bill was filed against he Executors of the will of Thomas Wood, and against the heir at law, Thomas Wood the younger. The defendants by their joint answer mainly relied on the plea of the Statute of Frauds, 29 car. 2. c. [&]. § 3. There being, as alleged, no written agreement signed to bind the testator, the complainant relied upon part performance by payment of a portion of the purchase money, by a possession given of the land referrible to a contract of sale, and resorted to parol evidence of the terms of the contract, so as to take the case in Equity, out of the Statute of Frauds. The main question in the case was, whether the possession enjoyed by the complainant was distinctly referrible to the contract alleged in the pleadings, for if it was, then it was to be considered part performance. Kine v. Balfe, 2 Ball and Beat. 348. Such a possession was denied by the defendants, who maintained that whatever possession the complainant had, was merely by sufferance for the purpose of hiding himself from his creditors, and that the receipt of a portion of the money was only adeposit and not in part payment.

            The case made by the bill was, that the testator, by a paper writing in his own hand, but not signed by him, agreed to sell the land under the following terms:- "Sydney, Sept. 4th, 1834. I hereby agree to sell Mr. John Hall a piece or parcel of land with all erections thereon, with two cows, all fruit trees, stock, &c. on the farm, situate in the district of Hunter's Hill, Lane Cove, adjoining Simpson's and opposite Archibald's farms, for the sum of £200, the payment to be made as follows: £25 to be paid down, the remainder to be paid by seven promissory notes at 3, 6, 9, 12, 18 and 21 months, bearing bank interest, with liberty to retire the bills at the earliest convenience; on the bills being retired before due, the interest to be deducted. I further agree to give immediate possession, which he shall not be dispossessed of, provided the said John Hall completes the before mentioned terms." That complainant paid down £30 and got a receipt as follows: "Sydney, October 11, 1834 - Received from Mr. John Hall, the sum of £10 cash, also a promissory note drawn by Mr. John Hall on Mr. C. F. Warne, at one month for £20, dated 6th October, 1834, as a deposit money of £200, for a farm purchased by Mr. Hall, situate in Lane Cove, called Hunter's Hill, for the above account of £200. Signed Thomas Wood, witnessed T. Johnson, and Thomas Wood." That complainant was immediately let into possession in pursuance of the agreement, but soon afterwards discovered that there was a mortgage on the estate, which the testator refused to pay off in order to the performance of his agreement. That before the second instalment became due complainant tendered the promissory notes to the testator, and requested completion of the agreement, both of which he refused. That in 1839, the testator redeemed the mortgage, and soon afterwards died leaving a will, by which he devised the possession in question to his executors, the defendants; in trust who proved the will, and left Thomas Wood, the other defendant, his eldest son and heir at law. That the executors had brought ejectment to turn complainant out of possession. The Bill prayed a decree for specific performance of the said agreement by defendants with a good marketable title, complainant being ready and offering to perform his part and to pay the residue of the purchase money on obtaining a proper conveyance, and that the defendants might be restrained from continuing the ejectment, concluding with a prayer for further relief. A common injunction had been obtained to stay proceedings at law.

            The defendants by their joint answer denied that any absolute agreement was entered into by the testator, and insisted that the agreement set forth in the bill was drawn up by the testator merely for the consideration of the complainant, who objected to a peremptory demand by the testator that the notes should be endorsed, whereupon complainant retained the agreement for considerations as to the endorsement. They then pleaded the Statute of Frauds, and acknowledged the payment of £30, but only as a deposit and not in part payment; and further, that in December, 1834, the sum of £25 was tendered on behalf of the complainant, but refused by the testator, who insisted that he ought to have had the notes according to his proposition. That the testator was for a long time before his death in urgent want of money. They then denied that possession was delivered by the testator, and that complainant had no possession, except liberty to hide from his creditors on the land, until May, 1840, when he entered by violence. The answer admitted, that the testator was seized of the land in fee simple; that he was not able to make a good title by reason of the mortgage; that he was sued by the mortgagee in January, 1839, and paid the mortgage off in September, 1839, and was then in condition to make a good title, -- and that he died in January, 1840, and made his will as alleged and proved by the executors.

            It appeared in evidence on the part of the complainant, that the testator had carried on the business of an oil and tinman in George-street. The original grantee of the land was a person named Henry, who sold it to Pittman, from whom the testator derived title. The unsigned memorandum of agreement, and the receipt set forth in the bill were duly proved. At the time the receipt was given, namely, 11th October, 1834, there was some verbal disagreement between Hall and Wood, about some negotiablebills which had not been handed over to the latter at the time they ought to have been. Hall then proffered them to Wood, but he refused them. The witness to this part of the transaction said, that at the time Wood admitted that Hall was in possession of the farm, the receipt was written by the witness at Wood's dictation in the presence of all the parties. He understood that possession was given to Hall, on receipt by Wood of the money mentioned in the receipt.

            In December 1834, three months after the date of the unsigned agreement, Mr. Long, an attorney's clerk, acting on behalf of Hall, and in pursuance of the agreement tendered £20 to Wood in part payment of the purchase money, but he refused to take it, and said that Hall should not have the farm. At that time Hall's circumstances were improving, although he had been embarrassed. It app[eared] that Wood had no other land at Lane Cove, but that which was the subject of this suit. From the evidence of four other witnesses, it appeared that about seven years since, Hall took possession of the farm, and remained continually in possession to the present time either by himself, his wife and daughter, or by his servants. On one occasion there was a vacant possession for a short time, by reason of a man whom he left in charge having absconded. During the seven years he had cleared and stumped land, planted an orchard with young fruit trees, cleared another orchard, put up a considerable quantity of fencing, and built a gardener's hut. He had from time to time, as many as eight men employed on the farm, and one eye witness thought that he must have spent as much as £200 in improvements. He had also cattle running on the land. About the time Hall went into possession, Henry, the former grantee, and still owner of some adjoining land, wanted Wood to assist him in making a road from his (Wood's) through his (Henry's) to the river side for their joint convenience, and he said, "he had nothing more to do with the road as he had sold his farm to Mr. Hall." In March 1834, Wood had been in treaty with a person named Hicks for the purchase of the farm, but the treaty went off, and in two or three months afterwards Hicks was informed by Wood, that he had sold the farm to Mr. Hall, and that he (Hicks) stood in his own light, for not purchasing it. A little time after this, in consequence of a person named Onions reproaching Wood for attempting to rob Mr. Hall of the £30 of deposit, Wood said to Hicks, in explanation of the charge, that he had received the £30, but that Hall had not fulfilled his engagements, and consequently he should keep the £30 and have the farm to himself; and added, "that there was such a great advance in the value of land that he was not bound to stand to his bargain, and that it was of more value to his family then." There was some loose evidence of Mr. Wood's sons going occasionally backwards and forwards to the farm during Hall's possession; but there was no proof of any acts of ownership, or of joint possession with the complainant. About a week after Mr. Wood's death one of his sons had attempted to gain possession of the house. The complainant had gone to Sydney, leaving the door secured on the outside by a handcuff; in the interval, the younger Wood put a padlock on the handcuff, and on Hall's return he found Mr. Wood, t[h]e younger, waiting. Hall unlocked the handcuff; the padlock fell, and he entered the house without violence. Mr. Wood then walked away, Hall telling him that it was not a personal quarrel, that the property was in dispute and the law must decide it. There was no proof that Hall had been allowed possession, for the reason assigned, namely, "to hide from his creditors." The complainant closed his case by reading those parts of the defendant's answer, which admitted the seizen of the testator; his inability to make good title, by reasons of the mortgage; the payment of the mortgage in September, 1839; the death of the testator; his will; and the proof thereof by his executors.

            On the part of the defendants no witnesses were called. Mr. Charles Wood, a son of of the testator, was tendered; but it appearing, on the voire dire, by his own admission, that he would be liable to pay a share of the costs in the event of a decree against the defendants, I rejected his evidence.

            The case was argued by the Solicitor-General and Mr. Lang for the plaintiff, and Mr. Broadhurst for the defendants.

            The determination of this case will mainly depend upon the character in which the defendant had possession of the land.

            There are certain principles now incontrovertibly established in Courts of Equity, applicable to this class of cases, by which this must be treated. It is a settled rule that if a party has concurred in a material unequivocal act, by which he has obtained a substantial part of his object, as allowing possession or accepting a considerable part of the purchase money, he shall not be allowed to retract, and the complainant's right to a full execution of the contract attaches. If, therefore, the possession relied on here be distinctly referrible to the contract alleged in the pleadings, it must be considered a part performance, so as to take the case out of the statute, and parol evidence of the contract will be let in to show the terms of the agreement. I agree that the parol evidence is not to be admitted on the ground of part performance, unless the agreement stated appears clearly to be the very same with that which was partly performed. Lindsay v. Lynch. I also agree that in such case the agreement must be proved as stated. Savage v. Carroll, 1, Ball and B., 551.

            First, as to the part performance relied on - the possession and the payment money. Was this complainant in as a trespasser, as a tenant, or allowed merely to remain there to avoid his creditors? All the oral evidence negatives every one of these propositions. He appears to have been quietly in possession from 1834 down to the present time, either by himself, his family, or his servants, and during that period he cultivated the soil, cleared land, planted orchards, put up fences, and made other substantial improvements to a considerable amount. The land was but a short distance from Sydney, where the testator himself resided, and he must have been cognizant of the improvements thus made, through the information of some of his sons who were in the habit of occasionally visiting the farm. This possession appears to have been acquiesced in until after the death of the testator, in January, 1840. What then is the possession referrible to? The receipt of the 11th October, 1834, at once clears up the difficulty, and shows that the parties had been in treaty for the purchase of the land, and it contains an acknowledgement that £30 was paid as a deposit in pursuance of that purchase of the same identical land, and at the same price mentioned in the unsigned memorandum of agreement. Then is this possession, and is this paymentreferrible to the agreement set forth in the bill? It appears to me to admit of no doubt that these acts of performance are substantially, if not in terms, in pursuance of the unsigned agreement set out, and cannot be referrible to any other agreement between the parties. The substantial matter of the receipt is identical with the agreement. The locality of the land is the same, and the price paid is the same. By that agreement the complainant was to have had immediate possession, which he should not be dispossessed of, provided he complied with the terms of the agreement. At the date of the receipt the testator had received £10 in cash and a note for £20, which he took as money, and which was £5 more than he was then entitled to receive. It is true, that at that time he was dissatisfied because the complainant did not give him negotiable bills; but it is to be observed, that the agreement did not stipulate for negotiable bills; it stipulated only for notes at 3, 6, 9, 12, 18 and 21 months which he might retire before due, but if they were negotiable, and paid away by the testator, how was the complainant to get them back? Notwithstanding this objection, still the defendant proffered him negotiable bills, which he declined. The complainant was bound to pay the second instalment within three months from the date of the contract: he had paid £5 plus the first at the date of the receipt, and then in December £20 in cash, to make up the second, but which the testator refused to take, and said that the complainant should not have the farm at all. In despite of this, he still suffers the complainant to remain in possession, without any attempt to disturb him, and allows him to go on improving the property until he is in a condition to redeem the mortgage in 1839. Indeed no attempt seems to have been made to disturb him until after his death. Up to the month of December, 1834, the complainant was ready to perform, not only all, but more than he was required to do by the terms of the agreement, for he had proferrednegotiable bills, and having been in possession and paid part of the purchase-money, it appears to me that he is now in a condition to enforce the agreement, notwithstanding the statute of frauds. I cannot but regard the possession and the payment of the £30 in October 1834; as referrible to [th]e ageement of the [4th September 1834, and] that these are parts performance of the same identical agreement set forth in the Bill, and proved in evidence. A reason has been [as]signed for the testator's determination to break his agreement, to which I am unwilling to give credence, but which, if satisfactorily demonstrated, would at once throw a true light upon his motives; namely, that after his bargain with the complainant, the price of land had risen in the Market. Without however, attaching any importance to this suggestion I think the complainant has made out a case for a specific performance, and is entitled to a decree in terms of the prayer of the bill. The testator may have made an improvident bargain but if a party, with his eyes open, and with full knowledge of all the circumstances, will make such a bargain, and partially act upon it, by giving possession and taking part of the purchase money, it is the province of equity to compel him to fulfil his first intention, though the contract be not strictly in conformity with the terms of the statute. The duty of a Court of Equity [is] to compel the performance in legal binding form, of that which was honestly conceived by the parties, in the beginning of their dealings, and leave to neither, a locus penitentice to retract, on more advised considerations, either of prudence or avarice. Applying this principle to the present case, I pronounce a decree in the complainant's favour.

            Mr. Donnelly moved in this case that an order might be made absolute for confirming the certificate of the Commissioners, who had been appointed by the Court to divide the estate which had been the subject matter of the suit. Rule absolute granted.

Dowling C.J., 10 December 1841

Source: Australian, 11 December 1841


            Before His Honor the Chief Justice.

            Hall v. Borton, Weaver and Others. - This cause was heard before His Honor the Chief Justice, on the 2nd of December last, the particulars of which hearing were detailed in the Australian of the 7th. Judgment was then deferred by His Honor, till a future day. His Honor proceeded to read over the evidence which had been brought forward, the previous day, tending to shew that the defendants had not fulfilled their part of an agreement, as executors of one Thomas Woods, relative to the purchase by the plaintiff, of a farm belonging to the said Thomas Woods, situate at Hunter's Hill, Lane Cove, in the month of December, 1834. His Honor in remarking on the evidence said that, he considered that went to shew the existence of the agreement and that the plaintiff had endeavoured to fulfil his part of it. The duty of a Court of Equity was to compel in a legal and binding form, the performance of what was honestly conceived; and he could not think the complainant entitled to a decree in accordance with his complaint.

            His Honor accordingly pronounced a decree in favor of the plaintiff.

Published by the Division of Law, Macquarie University