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

Foss and Lloyd v. Murphy [1842] NSWSupC 13

land law, fraudulent sale - land law, specific performance

Supreme Court of New South Wales

Dowling C.J., 16 February 1842

Source: Sydney Herald, 17 February 1842

An application of rather an interesting nature was yesterday made in chambers to Mr. Justice Barton. A party of the name of Whitfield had, for the trifling sum of £ 45, bought at a sheriff's sale a quantity of land, the property of the above defendant, situate at Tamberaine Bay, and which, upon affidavit, was alleged to be worth many hundreds.

            Mr. FOSTER, on behalf of the prosecutor Whitfield, applied to his Honor to order the Sheriff to convey the land according to the sale.

            Mr. BROADHURST showed cause, alleging that the application was neither more nor less than a bill for a specific performance, and that the Sheriff had very properly, upon discovering that the land had been knocked down at a ruinous sacrifice, interfered to prevent the injustice that would be done if property like this were to be conveyed for so ridiculously small a consideration.

            His HONOR dismissed the application, at the same time observing, that it was enough to make any upright man ashamed of the community in which he was living, when he discovered, as in New South Wales he must do, how frequently these sacrifices of valuable property took place. He thought there must be fraud, conspiracy, or collusion some where, for such inadequate returns never could be, His Honor thought, in open, fair, and unreserved sales of property of any kind. Summons dismissed without costs.

Published by the Division of Law, Macquarie University