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

Terry v. Booth [1841] NSWSupC 118

specific performance - conveyancing

Supreme Court of New South Wales

Dowling C.J., 17 December 1841

Source: Sydney Herald, 18 December 1841





            This was a suit brought for the specific performance of an agreement. Mr. Windeyer appeared for the complainant, and Mr. Donnelly and Mr. Broadhurst for the defendant.

            Mr. WINDEYER called Mr. Rodd, the Attorney, who stated, that he was the attorney for the complainant, and in that character called upon the defendant to request that he would make a good title to the land, which by the agreement he had sold to the complainant: that the latter had promised to comply with this request, when he had a good title himself, which he soon expected he should have in the form of a grant from the Crown, and that the papers on which his, the defendan[t]'s title wasfounded, were in the hands of Mr. O'Reilly, the solicitor, who was conducting the affair through the Court of Claims. Mr. Rodd afterwards made enquiry at the Court of Claims, and discovered that no claim, as described by the defendant, had been filed by him in the Court of Claims. Mr. Rodd then went to Mr. O'Reilly's office, and there saw Mr. Booth and Mr. Yarnton, and time was asked by the former to enable him to comply with Mr. Rodd's request, and acceded to by the latter, with the consent of the complainant. A fortnight's time was granted, at the end of which, nothing more was done, and subsequently, at the request of the defendant, successive indulgencies of time were granted, but without any progress being made by the defendant in perfecting his title. Upon this Mr. Rodd offered to take out the grant in his own name, paying the expenses, to which proposition the defendant stated he was not in a condition to assent, as the very same thing was to be done by the party of whom the defendant had purchased.

            On cross-examination by Mr. DONNELLY, Mr. Rodd acknowledged that he had searched only in the name of Booth, and not at any time, in the name of Pressnell. An abstrac[t] of the defendant's ti[tl]e had been prepared, which was very commonly done, although no grant had actually issued. On the delays being complained of, the defendant had offered to return the purchase money. This was the complainant's case.

            Mr. George Swinnerton Yarnton, was called by the defendant, and examined by Mr. BROADHURST. He stated he was clerk to Mr. O'Reilly, and knew of the agreement which had been mentioned in the complainant's bill. That applications had been made as described by Mr. Rodd, and that in consequence of these applications, and Mr. Booth's explanation, the proceedings were prosecuted in the name of Mr. Pressnell on the claim by Booth. That these steps were taken on Mr. Booth's account, and he, witness, considered Mr. Booth liable to Mr. O'Reilly for what had been done in Mr. Pressnell's name. He, witness, had himself, in Pressnell's name, but for Mr. Booth, made application for the grant to the Colonial Secretary, and received for answer, that the matter was referred to the Surveyor-General. Witness had frequently known delays of three years to take place between an application and a grant, in cases where no opposition was offered.

            This being the defendant's case, His HONOR said, that the case must be referred to the Master, to report whether the defendant was in a situation to make a title to the property.

            Attorney for the complainant, Rodd; for the defendant, O'Reilly.

Published by the Division of Law, Macquarie University