Skip to Content

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

Innes v. Holt [1841] NSWSupC 20

specific performance

Supreme Court of New South Wales

Dowling C.J., 27 February 1841

Source: Australian, 2 March 1841

            In the suit of Innes v. Holt, his Honour pronounced the following judgment:- This was a bill for the specific performance of a contract against the attorney and agent of Daniel Cooper, for the sale of certain lands on the Surry Hills, of which the complainant claims to be equitable owner, and to which the defendant, James Holt, has demurred for want of equity against him, as the agent of Daniel Cooper. It was admitted in argument, as a general rule, that a mere agent or witness, without interest in the matter of the suit could not be made a party, but it was contended that the special circumstances of this case took it out of the general rule. The bill states, that on the 22nd September, 1840, Daniel Cooper sold by auction, to George Innes, certain lots of land, parcel of an estate called Mount Lachlan, on the Surry Hills, at the price of £519 10s. 8d. That at that time there was an open unsettled account between George Innes and Cooper and Levy, and that it was agreed between G. Innes and D. Cooper, that the payment of the purchase money should abide the settlement of that account, and that in the mean time the purchase money was to remain at interest at 10 per cent; that G. Innes since deceased, was immediately let into possession of the land, which he fenced in, and retained possession, until D. Cooper left the colony in 1831, that in March, 1833, Cooper sent out a power of attorney to James Holt, constituting him as attorney or agent to manage his affairs, and execute conveyances in his (Cooper's) name, under which Holt acted, and in fact executed conveyances to various purchasers of other lots of land, parcel of the same estate. That in September, 1834, G. Innes disposed of his interest in the lots to Hughes and Hosking, who gave notice thereof to Holt, and he accepted them as assignees of the contract; that in September, 1838, Hughes and Hosking transferred their interest for valuable consideration to the complainant, who thereby became equitable owner thereof, and gave notice of the transfer to Holt, who accepted him as assignee of the contract, and on various occasions dealt with and recognised him as such assignee, that no statement of accounts had been rendered by Cooper and Holt to G. Innes, but after repeated applications by complainant to render the account, in order that the balance, if any, might be paid by him, and the transaction completed. The defendant at length, in 1836, rendered to the complainant's solicitor, a balance sheet, of the date of September, 1831, debitting George Innes in the amount of £360, that complainant had given notice of his readiness to discharge this balance and pay interest according to the original contract, and demanding of the defendant, as Cooper's agent, the execution of a conveyance of the land, but which the defendant refused to do, pretending that he had no power so to do; whereas the complainant charged the contrary, a specific performance of the contract by Holt, as agent, to make good a marketable title to the land, the complainant offering to perform his part of the contract, and on the execution of a proper conveyance to pay the purchase money, and interest which may be due to Cooper; and that in the meantime the defendant may be restrained from disposing of the land, or executing any conveyance thereof to any other person; and for further and other relief. This bill, in mere terms, is, "for discovery and relief;" but I have been unable to find any authority for holding, that unless the agent has an interest in the subject of the suit that he can be made a party, or unless there is fraud or collusion, or that there would be a total failure of justice if he were not made a party. It appears to me, therefore, that there are here no special circumstances which takes this case out of the general rule, which is admitted, that a mere agent without interest cannot be made a party to a suit. Everything alleged in this bill to have been done by the defendant, if true, was done merely by virtue of and in his sole capacity as agent; he has no interest, there is no collusion charged, and as it cannot be predicated that there will be a total failure of justice if he is left out of the bill, I see no reason for departing from the general rule. The reason given in the books for the exception to the general rule is where there would be a total failure of justice, if the exception were allowed, as in the cases of corporations, where the party representing the corporation for corporate acts, is the only visible or tangible person through whom relief or discovery can be obtained. It was upon this principle that the case of Glynn and Soaves (Young and Collier 614) proceeded. If the actings of Holt place him in a position to accept substituted services, there will be no failure of justice, which is the gist of the reason for relaxing the general rule. It is true, the complainant seeks relief, but I see no ground made out for relief against the defendant Holt, who is a mere agent without interest. I have carefully looked through all the authorities upon this point, and I see no special circumstances, such as a Court of Equity would recognise for taking the case out of the rule. I think the demurrer must be allowed.

Published by the Division of Law, Macquarie University