Skip to Content

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

Marks v. Carney [1842] NSWSupC 24

land law, equitable title - conveyancing, equitable title - Court of Claims

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 4 February 1842

Source: Sydney Herald, 5 February 1842 [1]

            This was an argument on a demurrer. The declaration was for a breach of an agreement made by the defendant with the plaintiff; the declaration having recited that the defendant had contracted with the plaintiff for the purchase, in fee simple, of certain premises, situate at Miller's Point for the price of £700; £350 of which was to be paid in cash, and the residue by bills of £175 each, at three and six months, without interest. It appeared, that although the plaintiff had, or appeared to have, a good equitable title to the said premises, no actual grant of the same had yet been issued from the Crown; and it was therefore agreed between the parties, that the plaintiff should prosecute his claim to the grant and procure it to issue in the name of the defendant and that the equitable fee simple of the premises should be conveyed in payment of the said sum of   £350, agreed to be paid in cash; and that the remainder of the purchase money, viz.: - £350, instead of being paid, should be retained as a security for the completion of the title, by the plaintiff prosecuting his claim, and using his best ability to procure the title to be issued according to the agreement, and the money deposited as security was not to be paid to the plaintiff until either the grant should be actually issued, or recommended, by the final report of the Commissioner of Claims; and in this case the grant should not be issued or recommended. On or before the expiration of two years, it should be lawful for the defendant upon tendering a reconveyance, to require that the sum of £350 already paid should be repaid, and that he should be allowed to retain the residue of the purchase money, and the contract then to be rescinded. But in case within the time such grant should be issued or recommended; then upon such issuing or recommendation within six months, so as to complete the legal title to the premises in the plaintiff, the defendant was to pay such sum to the plaintiff, as would have been due if the bills had been given; and if after six months, then that the defendant should forthwith pay to the plaintiff the remainder of the purchase money. The plaintiff agreed to deposit in the hands of Messrs. Rogers and Young, the solicitors of the defendant, a certain deed of grant as an equitable mortgage, for collaterally receiving the due performance of his, the plaintiff's, part of the contract; the deed of grant not to be redeemable, until the plaintiff should have procured the said grant to issue, or had failed in doing so after using due diligence. The declaration then averred that the plaintiff had afterwards conveyed the equitable fee simple to the defendant, and that although after the expiration of six months, and before the expiration of two years from the date of the agreement, the plaintiff had procured a recommendation by the final report of the Commissioner of Claims, that the grant should issue; yet the defendant had not either paid the residue of the purchase money, nor redelivered out of the hands of Messrs. Rogers and Young, the deed of grant of which had been deposited with them as a collateral security for the due performance by the plaintiff, either of procuring the grant, or the Commissioner's recommendation.

            The defendant pleaded that, at the commencement of the action, two years had not expired after the date of the agreement, and that, after the commissioners made their first report, and before the action, there was a reasonable time, within which the plaintiff might and could have procured a grant to be made in the name of the defendant; and that the final report of the commissioners did not complete the legal title of the defendant; and it was ... a satisfactory preference of the plaintiff's agreement on his default to procure the grant to be made, as aforesaid, within the said reasonable space of time; and that the plaintiff was not ready and willing, nor offered at any time (after the commissioners had made their report) to procure a grant to be made in the name of the defendant.

            In this plea the plaintiff demurred on various technical grounds, but chiefly because it attempted to give a construction to the agreement not warranted by its terms.

            Mr. BROADHURST contended that the plea was bad, for not properly confessing and avoiding the matter contained in the declaration, and for attempting to give an undue latitude to the meaning of the agreement in favour of the defendant, by assuming, contrary to its terms, that the plaintiff was bound to procure absolutely a grant to issue in favour of the defendant, in order to give him a legal title to the estate.

            Mr. FISHER, for the plea, contended that the evident intention of the parties, as gathered from the agreement, was, that the plaintiff should procure a grant, to issue in the name of the defendant, and that merely procuring the recommendation of the commissioner in his favour was not sufficient.

            Their Honors thought that the plea was bad, and gave judgment for the plaintiff.                     

[1] See also Australian, 5 February 1842, recording the judgment as follows:

"The Court in pronouncing judgment said, that they considered that the terms of the agreement were sufficient explicitly as to when the remainder of the purchase money should be paid, stating as they did, that it should be retained until the end of two years, by which time plaintiff should either obtain the issue of a grant or the final recommendation of the Commissioners for such issue.   Now the plaintiff having obtained this recommendation, he had a right to claim his payment and the Court must grant a rule empowering him to recover the £350 due on the purchase according to the agreement."

Published by the Division of Law, Macquarie University