Beard v Wratislaw [1991] QSCFC 23 [1993] 2 Qd R 494

I IN THE SUPREME COURT OF QUEENSLAND fc I Rsvised copies -ISSUED l f Cour{ Reportin3 Bureau J I Dat9: Z /</ FULL COURT Mr. Justice McPherson SPJv/ Mr. Justice Derrington Mr. Justice Moynihan Appeal No. Ill of 1990 10 BRISBANE, 21 MARCH 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) 10 ^ • BETWEEN : JOHN DAVID BEARD, KENNETH JAMES EUSTACE, MAXWELL JAMES MEAD and CLIVE ALLERT (Plaintiffs) Appellants - and - BARBARA JOYCE WRATISLAW (Defendant) Respondent 20 30 JUDGMENT MR. JUSTICE MCPHERSON: The Court in this and the succeeding appeals this morning consisted of Mr. Justice Derrington, Mr. Justice Moynihan and me. I would allow this appeal with costs, set aside the judgment in the court below, and instead give judgment for the plaintiffs for specific performance of the contract referred to in the writ of summons. I would also give judgment dismissing the counterclaim with costs. I would order the defendant to pay the plaintiff's costs, including reserved costs if any, of the action. There should be liberty to the parties to apply. I publish my reasons. Mr. Justice Moynihan agrees with the orders I have proposed. I publish his reasons. MR. JUSTICE DERRINGTON: I would dismiss the appeal. — Govt. Printer, Qld. 30 40 50 1 [1991] QSCFC 23 -- 1 of 51 -- I publish my reasons. MR. JUSTICE MCPHERSON: . There will be orders in the form that I have proposed. 10 10 20 30 40 50 30 40 ( 50 60 — Govt. Printer, Qld. 60 2 -- 2 of 51 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 111 of 1990 BETWEEN JOHN DAVID BEARD. KENNETH JAMES EUSTACE MAXWELL JAMES MEAD and CLIVE ALLERT (Plaintiffs) Appellants AND BARBARA JOYCE WRATISLAW (Defendant) Respondent MCPHERSON SPJ DERRINGTON J MOYNIHAN J Reasons for judgment delivered by McPherson SPJ, Derrington and Moynihan JJ on 21 March 1991. Moynihan J agreeing with the order proposed by McPherson SPJ Derrington J dissenting. "APPEAL ALLOWED WITH COSTS. JUDGMENT BELOW SET ASIDE AND IN LIEU THEREOF ENTER JUDGMENT FOR THE PLAINTIFFS IN THE ACTION FOR SPECIFIC PERFORMANCE OF THE CONTRACT AND ENTER JUDGMENT DISMISSING THE DEFENDANTS COUNTERCLAIM WITH COSTS. ORDER THAT THE DEFENDANT PAY THE PLAINTIFF'S COSTS OF THE ACTION INCLUDING RESERVED COSTS IF ANY. THE PARTIES TO HAVE LIBERTY TO APPLY" -- 3 of 51 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 111 of 1990 Before the Full Court Mr. Justice McPherson S.P.J. Mr. Justice Derrington Mr. Justice Moynihan BETWEEN: AND: JOHN DAVID BEARD. KENNETH JAMES EUSTACE MAXWELL JAMES MEAD and CLIVE ALLERT (Plaintiffs) BARBARA JOYCE WRATISLAW (Defendant) Appellants Respondent JUDGMENT - MCPHERSON S.P.J. Delivered the Twenty-First day of March 1991 CATCHWORDS Vendor and purchaser - Contract for sale of pastoral lease under Land Act - At contract date lease under conversion to grazing homestead perpetual lease - Parties aware - Subject matter of sale - Duty to deliver transfer with "instrument of title" - Meaning - Vendor's failure to provide instrument of title - Whether default by purchasers in failing to tender Land Act 1962-1988, s.160; R.E.I.Q. contract (1982 ed.), cl. 2. Counsel: J. Greenwood Q.C. with C. Carrigan for the Appellant P. Keane Q.C. with B. Clarke for Respondent Solicitors: Phillips & Lowes for Appellants McCullough Robertson T/A for Morrow & Co. for Respondent Hearing dates: 11 and 12 February 1991. -- 4 of 51 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 111 of 1990 BETWEEN : JOHN DAVID BEARD. KENNETH JAMES EUSTACE MAXWELL JAMES MEAD and CLIVE ALLERT (Plaintiffs) Appellants AND : BARBARA JOYCE WRATISLAW (Defendant) Respondent JUDGMENT - MCPHERSON S.P.J. Delivered the Twenty-First day of March 1991 In 1988 the defendant (respondent to the appeal) was possessed of the cattle property "Alkoomie", some 72 sq. miles in area, located south-west of Cooktown. She held the property as lessee from the Crown under the Land Act 1962-1988 having acquired it in 1975 with her late husband as joint tenant from persons who were assignees from one or more of the original lessees from the Crown. The lease was a "pastoral lease", as defined in the Act, for a term of 30 years commencing from 1 April, 1964 at a specified annual rental, so that at the time with which these events were concerned the lease had a period of only some six years or less to run. Its description or number is PL 14-4623., Division I of Part VI of the Act authorises the Minister on application by a lessee to grant a new lease of the whole or part of a holding represented by a pastoral lease in substitution for a subsisting lease that has not more than 10 years to run: s.155(1). If the Minister approves the application, he is to -- 5 of 51 -- 2 determine the area of land in respect of which the new lease is to be offered, as well as the tenure, term, and rental thereof: s. 157(2). The Minister may include in the area offered any Crown land in addition to the whole or part of the land contained in the subsisting lease: s'. 157(3). A lessee electing to take advantage of a decision of the Minister approving an application for a new lease in substitution for the subsisting lease is required to surrender the subsisting lease "and thereupon the Governor in Council shall issue a new lease to him in accordance with the decision of the Minister": see s.160(1). The new lease is to commence on the quarter day next following surrender of the former subsisting lease : s .160(2). The defendant's lease satisfied the description in s. 155(1) of the Act. In about March 1988 she applied for a new lease of Alkoomie. By letter dated 7 April 1988 the Land Administration Commission (LAC) Department, acting on behalf of the Minister, offered a new lease of part of the Alkoomie holding as shown on an attached plan, exclusive of a defined area of 760 ha. to be included in Caloola, but inclusive of a defined area of 760 ha. to be surrendered from Caloola. Caloola is the adjoining property also leased from the Crown, and so was Crown land within s.157(3). The underlying purpose of the contemplated exchange of 760 ha. was to reduce problems arising from the shapes of the two properties. To this end the letter of 7 April 1988 required from the defendant an executed surrender document, together with the instrument of lease in respect of Alkoomie, to be returned to the LAC by 30 June 1988 so as to enable the new lease to O o o o -- 6 of 51 -- 3 commence from 1 July 1988. The tenure of the new lease was to be grazing perpetual homestead lease. The instrument of surrender dated 10 May 1988 was executed by the defendant and received by the LAC on 23 May 1988. In due course the instrument of lease, being the subsisting pastoral lease no. 14-4623 commencing from 1 April 1964, was also received there. There were some delays in preparing survey plans for giving effect to the exchange of lands between Alkoomie and Caloola; but in the end the plans were received on 24 February 1989. The new grazing homestead perpetual lease was executed on 30 March 1989. It is identified or numbered GHPL 14/231. In accordance with s. 160(2) of the Act it is expressed to commence from 1 July 1988. In the meantime the defendant had agreed to sell the Alkoomie property to the four plaintiffs, who are the appellants before us. The contract (ex. 12) dated 15 August 1988 is in the standard printed REIQ form (1982 ed.). It names the four plaintiffs as purchasers but is in fact signed by only two of them. This formed a ground of defence at the trial of the action for specific performance in the District Court at Ca?rns. It was disposed of by his Honour's conclusion that the two purchasers who signed did so for themselves as principals and also as agents for the other two: Basma v . Weekes [1950] A.C. 441. No challenge to this part of the decision has been made on appeal. Before us the principal question in dispute revolved around the precise identity of the subject matter and the defendant purchaser's obligations in relation to it. The contract ex. 12 gives the particulars of land sold as "vacant"; and the -- 7 of 51 -- 4 description as "P.H. 278", which is the number of the plan of the area of the pastoral holding that is attached for the instrument of lease. The county, parish and town are given, together with the area of 72 sq. miles; the type of holding is "pastoral lease" and the lease number 14/4623 appears next to it. The instrument of title is said to be located at ANZ Bank, Mareeba. On the face of the contract, what the parties agreed to buy and sell was the pastoral lease commencing in 1964 from the Crown in respect of the property known as "Alkoomie". By the time the contract was executed, however, all parties were aware of the steps being taken by the defendant toward renewal of the lease, and its proposed conversion to grazing perpetual homestead lease. The plaintiffs learned of the "adjustment" involved in the exchange of land with Caloola only later, but it does not affect their attitude. The contract is dated 15 August 1988. By that time the pastoral lease had, as appears from an endorsement dated 30.6.1988 on the instrument itself, been surrendered. The endorsement proceeds: "Now being GHPL 14/231 Cooktown". The grazing homestead perpetual lease was, as I have said, not executed until 30 March 1989; but, in accordance with s.160(2), the new lease was required to commence on the quarter day next following surrender of the former pastoral lease. That surrender was, in turn, required by s. 160(1) to follow the lessee's election to take advantage of the Minister's offer of a new lease in substitution for the subsisting lease. As I have said, the lessee's election reached the LAC not later than 23 May 1988. The surrender took effect on 30 June 1988, and the term of the new lease (the GHPL) commenced from 1 July 1988. O o o -- 8 of 51 -- 5 Hence, at the date of the contract the leasehold interest (pastoral lease no. 14/4623) agreed to be bought and sold had in law ceased to exist. No one now suggests that this means that the contract was invalid. Both sides of the transaction at all times knew that the "conversion" to grazing homestead perpetual lease was under way as part of a process of granting a new lease. Mr M.J. Mead, who is one of the plaintiffs and their solicitor, regarded them as buying a pastoral lease which was being converted to a grazing homestead perpetual lease. On appeal Mr Keane Q.C. was accepted that what the parties were buying and selling was "a lease in the process of conversion". The reality no doubt is that the parties thought of themselves as buying and selling the Alkoomie cattle property whatever the title under which it might be held. There was no dispute on appeal that evidence was admissible of the state of knowledge of the parties in order to identify that contractual subject matter: cf. Akot Ptv. Ltd, v. Rathmines Investments Ptv. Ltd. [1984] 1 Qd.R. 302; Dainfords Ltd, v. Tari Nominees Ptv. Ltd. (1984) Building Units and Group Titles Cases 30-073. Difficulties nevertheless emerge in applying the provisions of the standard form printed contract to the state of affairs resulting from conversion of the title. The date for completion specified in Item Q of the contract was 15 February 1989. By cl. 23 of the contract time was in all cases and in every respect to be of the essence of the contract. By cl. 2, entitled "Completion and Possession" - "The balance of the purchase price shall be paid on the date for completion stated in Item Q in exchange for possession . . . together with a duly executed transfer in favour of the purchaser capable of -- 9 of 51 -- immediate registration (after stamping) in the appropriate office free from encumbrances ... and accompanied by the instrument of title except as provided in clause 8 ..." It is common ground that this date was by agreement extended to 1 March 1989 with time remaining of the essence. Clause 8 is concerned, among other matters, with the case in which the instrument of title to the land sold relates also to other land. Because of the proposed "adjustment" with Caloola, this presumably was (at least as regards pastoral lease no. 14/4623) the case here. But no reliance was placed on cl. 8 either at the trial or on appeal and it may therefore be disregarded. As the original date for settlement (15 February 1989) approached it became evident that the instrument of lease for the new grazing perpetual homestead lease would not be available in time for completion of the contract at that date. Correspondence passed between the solicitors for the parties. In the course of it or of accompanying telephone conversations the date for completion was extended first to 22 February and ultimately to 1 March 1989, time remaining of the essence. A letter dated 22 February 1989 from defendant's solicitor advised that "the replacement GHPL" was, according to the Department, expected to issue "within the next few days". A proposal by solicitors for the plaintiffs for an extension to 6 March 1989 met with a rebuff, so that in the end completion remained fixed for the agreed extended date of 1 March 1989. By faxed letter of that date defendant's solicitor advised that "GHPL 231 replacing P.H. 14/4623 in respect of Alkoomie Station" had now been recorded in the register at the LAC, and that the defendant's executed transfer would be accepted there -- 10 of 51 -- 7 for registration. Confirmation was given that the ANZ Bank mortgage and the related release of mortgage were also held by the Commission together with "the Lease P.H. 14/4623 (surrendered)". All of them were said to have been lodged for registration "but would be available for inspection should you require a search" . The letter proposed settlement at the LAC registry at Brisbane at 2.30 p.m. that day, 1 March 1989. Settlement and completion did not take place on that day. Essentially this was because, as was explained in the letter dated 1 March 1989 from plaintiffs' solicitor, the new instrument of lease (GHPL 231) had not issued, "and [it] might take up to 12 weeks for such lease to issue". In fact, as I have more than once said, it was executed on 30 March 1989. However that may be, it was neither executed nor available for a settlement that was fixed for 1 March 1989. In his letter the plaintiffs' solicitor claimed that in consequence the defendant was not in a position to settle in accordance with the terms of the contract of sale. He went on to say that the plaintiffs as purchasers nevertheless wished to finalise the contract and were prepared to settle as soon as the defendant as vendor was in a position to comply with those terms. A letter dated 2 March 1989 from that solicitor confirmed that this was the attitude of the plaintiffs. .Despite this, the defendant by a formal notice (ex. 34) dated 2 March 1989 elected: (1) to terminate the contract on the ground of the plaintiffs' failure to attend at settlement and otherwise to complete the contract; and (2) to declare the deposit of $16,200 to have been forfeited. The plaintiffs did not accept this notice of termination but instead -- 11 of 51 -- 8 gave a counter-notice to the defendant insisting on performance of the contract. The principal question to be determined on this appeal is whether the defendant was justified in terminating the contract by reason of the plaintiffs' failure to settle on 1 March 1989. This in my view depends entirely on whether under cl. 2 the plaintiffs were bound to pay the balance of purchase price on that day in exchange for the documents that the defendant was in a position to offer. Those documents did not include any "instrument of title" within the meaning of cl .2. The surrendered lease P.H. 14/4623 was available for inspection at the LAC registry; but it is not suggested that the defendant either could have or would have delivered it to the plaintiffs on settlement in return for the balance purchase price. In the court below the learned trial judge recorded his conclusion that under the contract what the plaintiffs were purchasing was "the rights or expectations of rights which the defendant would have to the land formerly incorporated in P.H. 278 or P.L. 14/4623 at 1st March .1989". His Honour went on to say that at that date they had an expectation that any dealing with the land would be recorded on the historical register sheet at the LAC "and thereafter recognised by the Department as a dealing which would become effective after issuance of the lease". His Honour concluded that the defendant was on completion date doing all that was required of her by providing access to such documents of title, consisting of the historical register sheet and the surrendered lease, as at that date were available to her. He considered that the plaintiffs were at the O () o -- 12 of 51 -- 9 time of contract not concerned whether on completion "they got a Pastoral Lease; a Grazing Homestead Lease, or something in between. In fact on completion they were to receive something in between but something which. . .would have resulted in the plaintiffs receiving the transfer of the GHPL subsequently issued to the defendant". In declining what was offered by the defendant on 1 March 1989 the plaintiffs, as his Honour held, declined to accept a performance for which they had contracted, and the defendant was therefore entitled as she did to terminate the contract. In my respectful view his Honour's conclusion cannot be sustained. Even accepting that what was being bought and sold was "a lease in the process of conversion", the plaintiffs did not agree to accept on completion date a "dealing" that would be recorded on the historical register sheet at the LAC and "thereafter recognised.. .as a dealing which would become effective after issuance of the lease". Quite apart from other considerations, it must be plainly borne in mind that "dealings" with land under the Land Act do not attract anything like the same protection as dealings with land under the Torrens system. In the case of land under the Real Property Acts , title is by registration ( Breskvar v. Wall (1971) 126C.L.R. 376, at 385-386) and conveyance by instrument is effectual to pass title only when registered and not before: see Real Property Act 1861-1988, s.43. Nothing like that state of things prevails in relation to leases and transfers of leases under the Land Act . In practice something resembling the same procedure is evidently followed in recording dealings under both systems; but the "historical -- 13 of 51 -- register sheet" has nothing like the status of the Torrens system register on which, by ss.33 and 44, the Real Property Act confers qualities of conclusiveness and indefeasibility. Under the Land Act particulars of leases under that Act, and of transfers "and other dealings therewith", are by ss.226 and 227 to be recorded in a register or registers; and in the course of these recordings "priority of registration of the dealing" is to be maintained: ss. 226(3) and 227(1). Nowhere, however, does the Act ascribe to such registers or the entries in them any of the legal character or consequences of a register or registration under the Torrens system. It is to my mind not even clear that (assuming the consent of the Crown as lessor) registration is necessary to give effect to assignments or "transfers" of leasehold interests under the Act: cf . Land Act , ss.286, 287. The problems of conveyancing under the comparable Crown lands legislation in New South Wales is considered by Stonham: Vendor and Purchaser, paras 464-477A and 1802-1809, who considers the desirability in such cases of requiring a common law conveyance. On any view of the matter, therefore, the historical register sheet maintained by the LAC was not an "instrument of title" within the meaning of cl. 2 of the contract. It was no more than it purported to be - a compilation of past dispositions of the land recorded in sequence. It is not, however, necessary to pursue these questions beyond the point of showing that what the plaintiffs were here being offered on settlement on 1 March 1989 was nothing like the title that would result from registration of a comparable transfer under the Torrens system. With the former instrument -- 14 of 51 -- 11 of lease P.L. 14/4623 already surrendered, and the new lease GHPL 14/231 not yet issued, it may be doubted whether at that date the defendant was in a position to transfer to the plaintiffs even as much as a leasehold interest in the land, as distinct from an interest under what was at that stage a mere agreement for lease, or something less. Section 160(1) of the Act does, it is true, in terms impose on the Governor in Council an obligation to issue ("shall issue") a new lease to a lessee who surrenders his subsisting lease under the provisions of that Division; but an enforceable agreement for lease is for these purposes not equivalent to a lease at law: see Hutchinson v. McGwen (1910) 10 S.R. (N.S.W.) 449, 454, 461; and, in any event, there is an ominous provision in s.162 expressly precluding remedies and excluding the jurisdiction of courts in respect of things done under the Division. Some of these difficulties may be overcome by accepting his Honour's characterisation of the transaction as a contract for the purchase of "the rights or expectations of rights" that would be held by defendant in the Alkoomie property on 1 March 1989. For my part I doubt if the contract of sale can be pressed so far as to fit it into such a mould. Even if, however, that is too narrow a view, it remains necessary to return to cl. 2 of the contract in order to ascertain what it was that the plaintiffs were bound to do on the date for completion, and what they are alleged not to have done. Clause 2 requires payment on completion date of the balance of price "in exchange for" possession and a duly executed transfer in favour of the purchaser "accompanied by the instrument of title". It is -- 15 of 51 -- accepted that both possession and a duly executed transfer were or could have been provided; what was not tendered was "the instrument of title". Mr Keane Q.C. submitted that "the instrument of title" referred to in cl . 2 is the same as that described in the contract particulars as being located at ANZ Bank, Mareeba. That was admittedly pastoral lease no. 14/4623. Long before 1 March 1989 it had been surrendered, and on that date it reposed in the office of the LAC. It is true that it was available for inspection at that place; but, even if completion was to take place there, by no stretching of language could that be said to satisfy the requirement of cl . 2 that the executed transfer be "accompanied by" the instrument of title. The transfer is plainly intended to be delivered to the purchaser, and the instrument of title is to accompany it. One compelling reason among others why the purchaser might be supposed to want the instrument of title is to enable him to raise finance by mortgaging the interest transferred to him. Without the instrument of title, he would be able to do so, if at all, only with extreme difficulty. The "duly executed transfer" that the defendant proposed to deliver on 1 March 1989 therefore could not and would not have been "accompanied by" the instrument of title. That is plainly so if the instrument of title was the surrendered pastoral lease no. 14/4623, of which the Commission had possession. It is plainly also the case, if it was GHPL 14/231, for that instrument of lease did not come into existence until it was executed on 30 March 1989. It was submitted that, in any event, the 12 -- 16 of 51 -- 13 o O O ■*v- O defendant never at any time undertook to transfer the GHPL that ultimately issued. That is by no means as clear to me as it appeared to counsel for the defendant. The leasehold interest in "Alkoomie" as defined in P.L. no. 14/4623 expressly includes "all other rights, powers, privileges, terms, conditions, provisions, exceptions, restrictions, reservations, and provisoes referred to, contained, or prescribed in and by the" Land Act and other Acts. The provisions of Division 1 of Part VI of the Land Act relating to surrender and the issue of a new lease fall directly within those terms, as does the "privilege" of the new lease itself. If what the defendant sold was "Alkoomie" pastoral lease or any new lease resulting from its surrender, then arguably the instrument of title to accompany the transfer on completion under cl : 2 was the instrument of title to the GHPL that commenced on 1 July 1988. The defendant was not, on 1 March 1989, in a position to produce that instrument. It is, however, in my view not strictly necessary to decide whether the "instrument of title" referred to in cl.2. of the contract was P.L. no. 14/4623 or the GHPL 14/231 that ultimately issued. Whichever of these it was, the defendant did not have it on 1 March 1989 and so was unable to deliver her transfer "accompanied by" that or any instrument of title. I have already concluded- that the "historical register sheet" was not in any sense an instrument of title within the meaning of cl .2. It follows that the defendant was not on that date in a position to settle and complete the contract in accordance with cl. 2. It may be said, and was submitted, that this state of affairs was not due to any default on the part of the defendant. -- 17 of 51 -- The delay in executing the new GHPL instrument seems to have resulted from delay in preparing survey plans relative to the land "adjustment" with Caloola. I am for present purpose content to accept that the defendant was not responsible for that delay,' and, in consequence, was not at fault in being unable to provide the new GHPL instrument of title at settlement on 1 March 1989. Such a conclusion no doubt suffices to protect her from assertions of a breach of contract on her part and against consequential claims for damages arising from that breach. It affords no justification for her purported termination of the contract by reason of the plaintiffs' failure to complete it on 1 March 1989. It was nevertheless submitted that the plaintiffs had on their own part failed to tender performance on that date, and that there was no evidence that they were then in a position to do so. In my opinion, however, this overlooks a critical element in cl . 2 of the contract. It does not impose on the plaintiffs as purchasers an unqualified obligation of paying the balance of purchase price on completion date. What cl. 2 does is to require the balance to be paid "in exchange for" other things including an executed transfer accompanied by the instrument of title. It is settled that the obligations of purchaser and vendor under a clause in that form are dependent, concurrent and reciprocal: cf. Dainford Ltd, v. Juana Ptv. Ltd. [1986J 1 Qd.R. 396, 401-402; Sunbird Plaza Ptv. ltd, v. Maloney (1988) 166 CLR 245, 264-265; and see Secacious Ptv. Ltd, v. Fabrella (1989) Qld. Sup Ct - Byrne J. : unrep.). The plaintiffs here were therefore obliged to pay the balance purchase price only in exchange for possession, transfer, and instrument of title from the defendant. -- 18 of 51 -- 15 The defendant was demonstrably unable on 1 March 1989 to" accompany the executed transfer with an instrument of title. Plaintiffs' solicitor was aware of this before the time for settlement at 2.30 p.m., which was why (or one reason why) he did not attend and tender on that day. Had he done so, he would have been entitled to withdraw tender once he discovered that (as was the fact) the defendant was on that day not in a position to complete in accordance with cl. 2. The law does not compel a contracting party to make a useless tender of performance; and where, as here, it can be seen that such a tender would or could have achieved nothing, the party failing to tender cannot by virtue of that failure be treated as being in default. When, as appears from the evidence at the trial, it is evident that the defendant vendor was on 1 March 1989 not in a position to complete the contract in accordance with cl. 2, she did not thereby acquire a right to terminate the contract. That was ’so whether her inability to complete was due to default on her part or otherwise. She was accordingly not entitled to give the notice of termination (ex. 34) dated 2 March 1989. Doing so amounted to a repudiation on her part of the contract. It was then no doubt open to the plaintiffs to accept that repudiation and so bring the contract to an end. They chose not to do so, and communicated that election to the defendant. The contract therefore continues to subsist, and the plaintiffs are entitled to specific performance of it unless some other ground of defence appears . Two other matters were raised. One, that the subject matter of the contract was uncertain, has, I consider, already been sufficiently dealt with in these reasons. I am content to regard the subject matter of the sale as the defendant's interest in the -- 19 of 51 -- "Alkoomie" property with the rights (including the GHPL) resulting from a surrender of that interest. At the date of the contract on 15 August 1988 those rights had already been transformed into a grazing homestead perpetual lease of which the term commenced on 1 July 1988. The obligation in cl. 2 took its meaning from those circumstances . The other matter raised on appeal concerned the provisions of the special condition of contract making "this sale ... subject to the consent of the Minister for Lands to the transfer of the leaseholds held under the provisions of the Land Acts." In fact, on 3 December 1988, Mr. T.E. O'Brien as delegate of the Minister consented to the contemplated transfer. The terms, of that consent were conveyed to the defendant by letter dated 8 December 1988, (ex. 30), which so far as relevant reads as follows: "With reference to your letter of 6th November, 1988, I wish to advise that upon prior recording and issue of the Instrument of Lease of a new G.H.P.L. to issue over surrendered Alkoomie P.H. 14/4623 Cooktown District, a transfer as proposed will be allowed if in order and lodged promptly, provided the terms of any Contract for Sale executed do not contravene the provisions of the Land Act 1962-1988 and the Contract or a certified copy thereof is lodged here with the transfer documents for filing in the records of the Department. If no contract is entered into, the Department should be advised accordingly." The point is made that the condition requiring Ministerial consent by 1 March 1989 was not fulfilled. In fact, the special condition does not in terms require consent by that date. Clause 1 6 of the printed conditions provides that if such consent is not granted by the date for completion, then either party may by written notice terminate the contract, whereupon the deposit becomes repayable. It may be thought that the defendant put it out of her power to determine the contract under cl. 16 when on 1 March 1989 she insisted upon settlement and completion on that -- 20 of 51 -- 17 day. Her later notice of termination (ex. 34) is by its own terms and recitals plainly not referable to cl. 16, and in purporting to forfeit the deposit it is inconsistent with the terms of the power or option conferred by that clause. In the end, however, the question is whether the condition as to Ministerial consent had, indeed, not been fulfilled by 1 March 1989. I find myself unable to read the letter ex. 30, or the consent it conveys, in the sense contended for. The consent given there is in terms a present consent to a transfer in the future. For some time past it seems to have been a practice of the Lands Department to approve of transfers in that proleptic form: cf. Norton v. Angus (1926) 38 C.L.R. 523, at 527. However that may be, it is in my view nonetheless a "consent to the transfer of the leaseholds" within the meaning of the special condition in the contract; and, if it is necessary to go further, it was not a consent that was "not granted by the date for completion" within the meaning of cl. 16 of the printed conditions of sale. This being so, the defendant has no defence to the plaintiffs' action for specific performance. I would allow the appeal with costs; set aside the judgment in the court below; in lieu thereof I would give judgment for the plaintiffs in the action for specific performance of the contract referred to in the writ of summons in the action, and also judgment dismissing the counterclaim; and I would order that the defendant pay the plaintiffs' costs of the action, including reserved costs, if any. As there may be a need to fix a new date for completion of the contract, there should also be liberty to the parties to apply. -- 21 of 51 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 111 of 1990 Before the Full Court Mr Justice McPherson S.P.J. Mr Justice Derrington Mr Justice Moynihan BETWEEN: AND: JOHN DAVID BEARD. KENNETH JAMES EUSTACE MAXWELL JAMES MEAD and CLIVE ALLERT (Plaintiffs) Appellants BARBARA JOYCE WRATISLAW (Defendant) Respondent JUDGMENT - DERRINGTON J. Delivered the 21st day of March, 1991 CATCHWORDS : Counsel: Mr Greenwood Q.C. and Mr Carrigan for appellants Mr Keane Q.C. and Mr Clarke for respondent Solicitors: Phillips & Lowes for appellants McCullough Robertson town agents for Morrow & Co. for respondent Hearing date: 11 and 12 February, 1991 -- 22 of 51 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 111 of 1990 BETWEEN : JOHN DAVID BEARD. KENNETH JAMES EUSTACE MAXWELL JAMES MEAD and CLIVE ALLERT (Plaintiffs) Appellants AND : BARBARA JOYCE WRATISLAW (Defendant) Respondent JUDGMENT - DERRINGTON J. Delivered the 21st day of March, 1991 In 1988 the respondent was the lessee from the Crown of a pastoral lease in the gulf country. Although it was due to expire in 1994, she had applied to the Department of Lands in 1986 for a conversion of the lease to a Grazing Homestead Perpetual Lease over the same area. After some negotiations, on 28 March, 1988 the Department gave its approval to the grant of a Grazing Homestead Perpetual Lease subject to the excision of part of the area of the old lease which was to be added to the area of an adjoining lease held by a Mr Martin and the inclusion in the respondent's lease of a corresponding area excised from Mr Martin's lease. Naturally this arrangement required the agreement of both the respondent and Mr Martin, which was forthcoming, and their mutuality of action in the consequential procedures . The alteration to the boundaries of the respective leases under the new arrangement required the attention of a surveyor -- 23 of 51 -- and at the time of the approval this cost was usually borne by the Department. However by a change in the Department's policy/ from 1 July, 1988 it required this cost to be met by the parties concerned, in this case, the respondent and Mr Martin. However, the respondent did not know of this immediately. While this position prevailed, she entered into a contract dated 15 August, 1988 to sell to the appellants what was described in the contract document by the title of her original pastoral lease. The date of completion specified by the contract was originally 15 February, 1989, but this was later progressively advanced to 1 March, 1989. Time was of the essence of the contract. The contract also contained the term that the balance of the purchase price should be paid on the date for completion in exchange for, inter alia, the executed transfer documents "accompanied by the instrument of title". However as part of the process of obtaining a new lease she had already executed a form of surrender of the old one and had delivered it to the Department with the instrument of lease. These circumstances were known to all of the relevant parties leading the learned trial Judge to find, "that the parties meant by ex. 12 (the contract document) to contract for the defendant to sell and the plaintiffs to buy the rights or expectations of rights which the defendant would have over the land then or formerly incorporated in P.H. 278 or P.L. 14/4623 at the date of completion namely 15 February, 1989 or such date to which completion might be extended". There is ample evidence to support the view that the parties either directly or through representatives all intended that the subject matter of the sale -- 24 of 51 -- 3 would not be the original pastoral holding but her interest in that property to which the respondent would be entitled as the result of her surrender of the old lease and the consequential grant of a new one . It has been argued pursuant to and in support of the trial Judge's finding, that the subject of the sale was confined to the bundle of rights of the vendor in the transaction with the Lands Department as it would exist on the date of completion, and that the reference to the "Instrument of Title" in the contract should be interpreted as referring to whatever instrument of title should happen to be available at the date of completion, including that relating to the old Pastoral Holding if the new instrument of lease were not available. But that cannot be so because of the possible position, which must have been in contemplation in these circumstances and which in fact because the case, that at the relevant date the old lease would have been surrendered and therefore unavailable and the instrument of lease of the new holding would not yet have issued. In that case there would be no instrument of title in existence to meet the respondent's obligation to produce it on settlement. In those circumstances, even if it could be produced by the respondent, the old instrument would no longer be an instrument of title for there would be nothing to which it could then evidence title. It would be only an instrument of former title. And the papers which the Department had produced towards the new grant did not purport to be and could hardly be described as an instrument of title . -- 25 of 51 -- There are many features which may render it important and even imperative to a purchaser to receive on settlement a document which is clearly the instrument of title. This is one of the reasons for the express term of the contract requiring its production on completion of the sale. Realistically the only instrument which could have been in the contemplation of the parties in relation to this provision was the new instrument of lease, and this strongly supports the conclusion that the subject matter of the sale was the new lease. More particularly it was not an unsettled "bundle of rights" having no instrument of title. Although it may not be conclusive, it is also manifest that this was the view of what was intended which was adopted by both parties in the period leading up to the date for completion for as it will be shown the respondent sought and the appellants granted an extension of time for completion on the express ground that the new instrument of lease had not issued but was expected to do so within the extended time. If it were believed that the production of the new instrument was not required, this arrangement would have been unnecessary. By 8 September, 1988 both the formal applications of the respondent and Mr Martin necessary for the exchange of land and the granting of the new leases were in the hands of the Department, and it advised both of them on 20 September, 1988 that they were required to have prepared and to pay for a "compiled plan" of the properties showing the exchange of land. They both believed that this required a full survey costing a considerable sum and both protested to the Department. They were -- 26 of 51 -- 5 in error in their belief for the cost was moderate because no field work was necessary and the Department advised Mr Martin to that effect on 23 November, 1988. There is no evidence however that it also notified the respondent and on 24 January, 1989 she wrote to the Department seeking to withdraw from the exchange of land. However before the Department could do anything about it, she must have learned the true position and joined with Mr Martin in instructing the surveyor to proceed, for the plans arrived at the Department on 20 February, 1989 and it continued with the original arrangement. However the approval of the grant of the new lease to the respondent was not given by the Governor in Council until 16 March, 1989 and the instrument of lease was not executed by the Governor until 30 March, 1989, that is in both cases, after the extended date for completion of the contract. On the date for completion the respondent offered to settle without producing any instrument of title claiming that as none was available, there was no obligation on her part to produce one, and that the appellants were required to settle without it. The error in this is manifest because it is in conflict with the contract. The obligation of the appellants to settle was expressly interdependent and concurrent with the respondent's production of the instrument of title: cf. Rvan v . Ferguson (1909) 8 C.L.R. 731: Dainford Ltd v. Juana Ptv Ltd (1986) 1 Qd. R. 396 at p. 401; Sunbird Plaza ptv Ltd v. Malonev (1988) 166 C.L.R. 245 and to the extent that the respondent might have been excused from such production then to the same extent she was disentitled from insisting on completion. Even aside from the express provision of the contract, which should be the end of -- 27 of 51 -- this point, as a matter of general law the vendor must produce the instrument of title on completion: Donaldson v . Gray (1920) V.L.R. 379, 383. Contrary to the above conclusions, the respondent's argument is that this is impliedly overridden by the agreement which she says is tp sell only the rights which she had A at the date for completion for which there was no instrument of title. However, as it has been shown the subject matter was her interest as lessee in the new Grazing Homestead Perpetual Lease for which there was to be an instrument, and the strength of this conclusion is further fortified by the above general principle. Of course the latter may be modified by agreement, express or implied (cf . McKeller v. Abbott (1891) 17 V.L.R. 215; Peter Turnbull & Co. Ptv Ltd v. Mundus Trading Co. (Aust.) Ptv Ltd (1954) 90 C.L.R. 235, 252-253), but the force of principle will not easily be displaced by inference; and when there is an express term consistent with the general principle it is impossible to imply the contrary in the present circumstances. It therefore may be safely said that in the present case the completion of the sale could not take place without the instrument of title, and in the circumstances that had to be the title to the new lease. Consequently the respondent was not entitled to require completion. To the respondent's offer to complete on her terms the appellants countered that as the instrument was not yet available they were entitled to defer the date of settlement until it became available. While they affirmed the contract, the respondent purported to rescind it on 7 March, 1989 on the ground of the appellants' alleged default in failing to settle on the -- 28 of 51 -- 7 O O o u date for completion. The appellants argue that the respondent was under an obligation to produce the instrument of lease at settlement on the date for completion, and that she was in breach of this; alternatively that if her obligation were conditional upon the availability of the instrument, she cannot rely upon this because of her delay in obtaining it in breach of her implied obligation to do all things reasonably necessary to obtain it by the date for completion. As all parties agree, there was a term implied from the circumstances that the respondent would act promptly to do all things necessary on her part to advance the process of obtaining the interest which was the subject of the sale and all things necessary for completion: cf. McFarlane v. Wilkinson (1927) V.L.R. 359; Mav v . Daly 91927) S.A.S.R. 428; Gasiunas v. Meinhold (1964) 6 F.L.R. 182. It is not acknowledged by the respondent however that this duty extended to the advancement of the matter towards the issue of the new instrument of lease but this is clearly so because the contract spoke of the exchange of, inter alia, the instrument of title for the purchase money on completion. This is not to say however that she was unconditionally obliged to produce the instrument on settlement: cf. Hargreaves Transport Ltd v. Lynch [1969] 1 W.L.R. 215 and Richard West & Partners (Inverness) Ltd v. Dick [1969] 2 Ch. 424. Her implied obligation in these circumstances was to do her best, but the result was out of her hands. Nor was there anything about the circumstances to suggest an implication that although the result may have been in the hands of others, she was nevertheless -- 29 of 51 -- 8 prepared to assume the unconditional obligation such as may be the case for example when a purchaser who is known to require finance is still prepared to enter into a contract which is on its face unconditional. In such a case an implication of a condition in favour of that party qualifying the obligation to proceed would not be justified, particularly as it would relate to something extraneous to the agreement . But here the unconcluded nature of the new grant at the time of contract and the possibility of a similar position at the date for completion are clearly factors which are interwoven into the terms of the agreement itself. As it has been seen, it was necessary to refer to them to determine the subject matter of the sale. It would then be artificial to ignore them in interpreting the contract to determine the respondent 1 s duties in respect of an essential feature of the subject matter, that is, its instrument of title. Although the facts are quite different, the process of reasoning in Redapple and Howgate v. Helv (1931) 45 C.L.R. 452 per Dixon J. (as he then was) at pp. 470-471 is fortifying of this approach. There as the parties knew the vendor was required to take steps to have the instrument of title amended to conform with the area sold but this was subject to acceptance by the Office of Titles. It was held that the vendor was obliged to take all proper steps but did not warrant the outcome of the application. There is a certain measure of analogy here in essential principle, though the exercise is always a matter of the interpretation of what is implied by the terms of the particular contract in the light of the particular facts of the case under consideration. ') -- 30 of 51 -- 9 Her obligation to produce the instrument on settlement was therefore conditional upon its becoming available to her pursuant to the procedure which she was obliged to follow in order to obtain it. While she was to use her best endeavours to that end and the length of time allowed before settlement shows that the parties expected or at least hoped that it would become available by that time (cf. Walter v. Nelms (1954) V.L.R. 398 at p. 399), the arrangement could not be construed so as to oblige her to warrant the co-operation of other in the process, particularly as to time. This restricted implication as to her obligation follows, not from some factor personal to her and within her control or accepted responsibility such as in the abovementioned circumstances of a purchaser's obtaining finance which is not made a condition of a contract, or where there has to be the release of a mortgage over the title, but from the very nature of the subject matter of this contract and the need for action by others in order that settlement could take place at the date for completion. In some ways this position is analogous with that where a contract such as this, requires the approval of the Minister, but contains no provision on that subject. There is an implication that the vendor will seek to obtain the approval, that neither party will do' anything which might put the gaining of approval in jeopardy, and if the vendor fails to obtain it the contract will go off: Duncan v. Mell (1914) 14 S.R. (N.S.W. ) 333, 339; Egan v. Ross (1929) 29 S.R. (N.S.W.) 382, 387; app Rawson v . Hobbs (supra) per Kitto J. at p. 486. See also Hargreaves Transport v ♦ Lynch ( supra) and Richard West & Partners -- 31 of 51 -- 10 (Inverness) Ltd v. Dick (supra). Further analogy may be drawn with McFarlane v. Wilkinson (supra) where the same .general circumstances obtained but because of the action of the purchaser the consent was delayed until after the date for settlement and after rescission by the vendor, time being of the essence of the contract. The "transfer of title" which it was the vendor's obligation to provide meant a transfer duly approved by the authority, and it is from this obligation that the vendor's duty to seek the approval was implied. In none of these cases was the vendor' s duty found to be the obtaining of the consent as distinct from dutiful pursuit of it, and of course the reason is that the result was outside the vendor's control or impliedly accepted responsibility. So too in the present case, that the instrument of title to be produced on settlement was the new lease was a matter of implication from the circumstances that the sale was agreed in the context of the vendor's application for a new title. That implication does not stand alone. For example there is also the implication of the vendor's obligation to do all things reasonably necessary to that end, an implication incidentally which would be otiose if her obligation were absolute in the sense of her having to produce the instrument, that is, her warranting the result. To say that these implications from the circumstances mentioned, which are necessary to the interpretation of the contract as to which instrument is to be produced on settlement, include one imposing the warranting the result of the circumstances, particularly as to time, is to go too far. It is because the process of obtaining the new lease O O o -- 32 of 51 -- 11 and instrument of title are so essentially part of its terms, for example in the identification of the subject matter, that it must be taken into account in the construction of the contract as to related topics. The analogy as to the condition that the vendor's obligation to obtain ministerial consent on settlement is subject to his/her ability to obtain it after diligent efforts, which is part of the implication that it is his duty to pursue it, is obvious. In Walter v. Nelms (supra) also the vendor of a business was held by implication to be obliged to seek the owner's grant of a new lease to the purchaser of the business when such a grant was made an express condition of the contract. It was further implied that this had to be effected before the date of passing of possession of the business at which time there was to be payment of a substantial part of the purchase money. It was still further held that if no such grant were obtained by that date, the contract terminated. This and other cases on the sale of a leasehold interest which is expressly made "subject to the lessor's consent" are not otherwise truly analogous because that condition was expressly stated in each of the respective contracts whereas here the first question is whether a comparable condition should be implied at all; and those cases were directed to the question whether the vendor had done all that was required of him to have the condition fulfilled: see Day v. Singleton (1899) 2 Ch. 320; Smith v. Butler [1900] 1 Q.B. 694; Lehmann v. McArthur (1868) L.R. 3 Ch. 496. For these reasons, it should be implied from the terms of the contract itself that there was a requirement for the -- 33 of 51 -- 12 production of the instrument of new lease on settlement but that it was conditional upon its availability. The next question is whether the respondent is deprived of any right to invoke this condition by reason of her conduct. It is abundantly clear that she delayed for several months in taking the action on her part necessary to the advancement of the grant of the new lease and the issue of the instrument of lease because she did not wish to undertake the expense which she believed was necessary for the survey. In this she was not justified in failing to carry out her contractual obligation, even if her belief had been correct, for in no way did her expense in performing it excuse her doing so: Thomson v . Richardson 91928) 29 S.R. (N.S.W.) 221. Any unilateral error as to expense on her part in entering into it could not have qualified her objective obligation as required by the contract. : However she argues further that her delay was immaterial because Mr Martin, the other party to the exchange of area, had not performed certain actions on his part which were also necessary to the progress of the exchange, and that his delay continued up to the time when arrangements were made for the surveyor's production of the compiled plan which allowed the Department to proceed to finality. If there were such delay on his part which prevented the advancement of the transaction in any case, then the respondent's failure to act reasonably or promptly would nevertheless not have been productive of any delay in the progress of the transaction. If however the delay were attributable entirely to her own refusal to proceed, then a comparison between the length of her delay and the period after -- 34 of 51 -- the completion date to the issue of the instrument of title demonstrates that the absence of the latter at the date of completion was due to her own default. On that hypothesis she would not be entitled to rely upon the unavailability of the instrument as a basis of discharge of the contract for non-fulfilment of the condition: Roberts v. Bury Commissioners (1870) L.R. 4 C.P. 755; New Zealand Shipping Co. Ltd, v. Societe des Ataliers et Chantiers de France [1919] A.C. 1 at 9; Smith v. Wirth [1945] St. R. Qd. 59; Amalgamated Building Contractors Ltd v. Waltham Holy Cross U.D.C. [1952] 2 All E.R. 452, 455. Because the parties do not appear to have directed their attention to this matter at the trial and the respondent did not enter the witness-box there is but sparse evidence as to whether Mr Martin was so responsible for the delay so that the instrument of lease could not have been available in time in any case. The respondent's delay was certainly established, but direct evidence as to the co-operation of Mr Martin is limited. Although-the Department wrote to him on 23 November, 1988 correcting his misapprehension as to the extent and cost of the required survey, however, as His Honour found:- "a letter of 20th December, 1988 to the defendant and ■ Mr Martin on the Department's file shows that the situation as per the plan was still unclear as far as the defendant and Mr Martin were concerned .. .". Moreover, according to Mr Hunter, who was the surveyor who prepared the compiled plan in the end, instructions from Mr Martin were not given until 9 February, 1989. This tends to support the proposition advanced for the respondent on this point on this appeal, which was not controverted in reply. It follows that so far as the evidence goes it shows that irrespectively of -- 35 of 51 -- 14 the respondent ' s delay the matter could not have proceeded to the grant to her of the new lease and the issue of the instrument of title by the date for completion of the contract because of this independent delay by Mr Martin. Consequently her delay had no bearing upon whether the instrument of lease issued in time for the date for completion of the contract, and so she is entitled to rely upon the implied condition to her obligation to produce it that it should be available to her to produce. Before dealing with this further it is desirable to discuss the effect of conversations and correspondence between the solicitors for the parties commencing shortly prior to the original date for completion and leading to various extensions of that date. This is because by reason of these communications the appellants claim waiver of and/or estoppel from her relying upon the essentiality of time. Alternatively, it is argued, if formerly the respondent had been under no obligation to produce the instrument of lease on settlement, by these new arrangements she promised, in consideration of the appellants' agreement to extend time, to produce the lease on the extended date or alternatively to extend the time further until it could be produced . Apart from the first occasion when the respondent's solicitor obtained a short extension in order to make himself acquainted with the details of the matter, the remaining extensions were negotiated by agreement expressly because the new lease had not yet been granted and, it is fair to say, particularly because the instrument of lease was not yet available but expected to issue shortly. If there were ever any O o o o -- 36 of 51 -- 15 C' ! o o u doubt that, the issue of its availability aside, the instrument of lease was required to be produced upon settlement under the original terms of the contract, then it would have been dispelled by these agreements for extension. This is because the very reason for the agreement by the appellants at the request of the respondent to extend the time was the unavailability of the instrument, and these circumstances clearly implied such a promise by the respondent in consideration of the appellants' compliance; and if necessary it would have amounted to a variation of the original agreement. However, there is some confusion as to the precise terms of this implied variation. The appellants claim that the respondent thereby undertook without qualification to produce the instrument of lease upon the extended date of completion, but there is no such promise expressed or implied from the circumstances : Cf. the approach taken by Dixon C.J. in Rawson v. Hobbs (1961) 107 C.L.R. 466 at p. 477 to the suggestion of an implied promissory provision from the circumstances there. In particular there is no reason to conclude that her promise was to do more than produce the instrument of lease on the settlement only if it became available to her by that time. It is clear that her solicitor and she may have had the hope and expectation that it would become available, but the matter was out of her control and nothing which was said and nothing in the circumstances would suggest that she was warranting that it would become available. Rather the factors which have been discussed above favouring the interpretation that her original obligation to produce the instrument on completion was conditional on its availability -- 37 of 51 -- 16 operate here in the same way. That her promise was so limited is clearly so if, as demonstrated above, her original promise was also so limited for there was no reason why her promise in respect of the extension should be different, and the later circumstances do not suggest that she should enjoy any greater confidence in the result than at the earlier stage. Further, there is nothing in the communications to suggest any such change. Nor was there any implied agreement for an extension of time for settlement beyond the agreed extended date, for her solicitor had always made it expressly clear that the extension was limited to that date and no further and that time was to remain of the essence pf the contract. Nor was there any waiver or estoppel. There was simply a variation agreement between the parties that because the instrument would not be available at the time for completion that was then set, the latter should be postponed in the hope that it may become available by the postponed date and the contract would not be frustrated. There were no further implications supporting a. waiver or an estoppel, for the *• % * ? postponed date provided both sets of parties with the mutual advantage of opening the possibility that the sale could continue. This is as far as it went. Consequently these communications do not advance the appellants ' case . The respondent has further argued that the condition of the contract requiring the consent of the Minister to the transfer, which it was her duty to obtain, was not discharged. The foundation for this argument lies in the terminology of the consent which was granted. That approved of a contract relating -- 38 of 51 -- 17 to the new Grazing Homestead Perpetual Lease which was yet to be issued, and it is somehow argued that there could not be a consent to a transfer in respect of a future interest. It is difficult to understand why such an inhibition could possibly be so. The future lease was clearly identified and no authority at all nor even any argument was advanced as to why the consent of the Minister could not be given in advance in respect of such a holding. There is nothing technical about the consent of the Minister and as it related directly to this transaction there is no difficulty. That the consent referred to a sale to three only of the purchasers is immaterial because the defect was the fault of the respondent in any case. This would be an answer, if it were necessary, to any complaint on her part as to the consent, for it was her obligation to obtain it, and she can hardly rely upon any non-fulfilment of a condition which was due to her own breach: Roberts v. Bury Commissioners (supra); New Zealand Shipping Co. ( supra ); Amalgamated Building Contractors ltd v. Waltham Holy Cross U.D.C. (supra) . In the result on the extended date for completion the appellants were entitled to require the production of the instrument of lease upon settlement but the obligation of the respondent to produce it was conditional upon its becoming available by that date. Consequently when that did not come about neither party was in default and the contract went off because of the failure of the condition. This being so and time being of the essence of the contract the appellants were not entitled to insist that the contract should remain on foot to be completed when the instrument of -- 39 of 51 -- 18 lease should finally become available. Nor was the respondent entitled to repudiate upon the alleged ground of the appellants ' default, for there had been no such default. She was not entitled to settlement without the production of the instrument of title. However she was entitled to terminate the contract for the reasons stated above. She did terminate it on 7 March, 1989 when her notice of termination was received by the appellants. By that date the instrument of lease had still not become available so there is no question to be considered in that respect. Nor is it material that the ground upon which she V_.v purported to terminate was not available to her nor that the reason which she gave was not justified: Shepherd v. Felt and ^ ^ Textiles of Australia Ltd (1931) 45 C.L.R. 359. Consequently her termination of the contract was valid in its effect, and it should simply be regarded as having failed so that the parties should be restored to their original positions. Although the reasons are different the conclusions reached by the learned Judge at first instance were correct in respect ( J of the orders and declarations which should have been made. The appeal should therefore be dismissed. -- 40 of 51 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 111 of 1990 Before the Full Court Mr. Justice McPherson S.P.J. Mr. Justice Derrington Mr. Justice Moynihan BETWEEN: JOHN DAVID BEARD. KENNETH JAMES EUSTACE. MAXWELL JAMES MEAD and CLIVE ALBERT (Plaintiffs) Appellant AND: BARBARA JOYCE WRATISLAW (Defendant) Respondent JUDGMENT - MOYNIHAN J. Delivered the 21st day of March, 1991 Counsel: J.. Greenwood Q.C. with C. Carrigan for the Appellants P. Keane Q.C. with B. Clarke for the Respondent Solicitors: Phillips & Lowes for the Appellants McCullough Robertson t/a for Morrow & Co. for Respondent 11th and 12th February, 1991 Hearing Dates: -- 41 of 51 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 111 of 1990 BETWEEN: JOHN DAVID BEARD. KENNETH JAMES EUSTACE. MAXWELL JAMES MEAD and CLIVE ALBERT (Plaintiffs) Appellant AND: BARBARA JOYCE WRATISLAW (Defendant) Respondent JUDGMENT - MOYNIHAN J. Delivered the day ^ * 1991 This case is a classic illustration of the dangers of using a standard form contract in circumstances other than those for which it was designed at least without careful drafting to accommodate the particular situation. On 15 August, 1988 the parties, with the respondent as vendor and the appellants as purchaser, signed a contract on a standard R.E.I.Q. form. In the place provided for insertion of "particulars of land sold" the parties acknowledged the current use of the land was "vacant" and its description was "P.H. 278 D.G.O. 0115". The description went on to give the county, parishes and town for the holding. Provisions for insertion of the volume and folio ( relevant:"to the description of land under the Real Property Act) were left blank, one imagines because the land in question was Crown leasehold and those particulars were irrelevant. The area of land was said to be 72 square miles. The land was said to be sold as leasehold and the instrument of title was said to be located at "ANZ Bank, -- 42 of 51 -- 2 Mareeba". The type of holding was said to be "Pastoral Lease" and the lease number given was 14-4023. The purchase price was $162,000.00 with a deposit of $16,000.00. The standard form made provision for the insertion of a date of completion and 15 February, 1988 was inserted. Clause 2 of the contract dealt with completion and possession in * these terms:- "2. COMPLETION AND POSSESSION. The balance of the purchase price shall be paid on the date for completion stated in Item Q in exchange for possession (such possession to be vacant except for tenancies stated in Item M) together with a duly executed transfer in favour of the Purchaser capable of immediate registration (after stamping) in the appropriate office free from encumbrances except as set out in Item L and accompanied by the instrument of title except as provided in clause 8 and in the case of the land being subject to any tenancies referred to in Item M a notice (prepared by the Vendor) in conformity with Section 13 of the Residential Tenancies Act 1975 (if that act applies) together with the Vendor's executed and stamped copies of all instruments (if any) evidencing such tenancies. If the improvements sold may not be lawfully occupied unless there has issued a Certificate of Approval under the Fire Safety Act 1974 and/or a Certificate of Classification under the Standard Building By-laws 1975 appropriate to the uses stated in Item H the Vendor shall procure and deliver to the Purchaser such or both of those certificates as may be required to permit occupation of the improvements sold for such stated use and deliver the same to the Purchaser in exchange for the balance of the purchase price in addition to the documents abovementioned. If the date stated in Item ''Q* falls on a Saturday, Sunday or public holiday in the place for completion then unless Item Q designates such date as a Saturday a Sunday or by the name of the pubic holiday completion shall take place - (a) on such other day as may be agreed by the parties; or in default of such agreement - (b) on the day other than a Saturday Sunday or public holiday next following the date stated in Item Q." Time was said to be of the essence. -- 43 of 51 -- The contract in fact referred to the sale of : a cattle property called "Alkoombie" . The respondent held the property as lessee from the Crown under the Land Act 1962-1988. The lease, subject to the events to which I am about to refer, had been a "Pastoral Lease" (PL14-4623) for a term of 30. years commencing 1 April, 1964. By Division I of Part VI of the Act the Minister, on application by a lessee, was empowered to grant a new lease for the whole or part of a holding under a Pastoral Lease that has not more than 10 years to run; s. 155(1) of the Act. It is unnecessary for the moment to deal with other provisions of the Act called into play upon such an application being made. In March 1988 the respondent applied for a new lease and on 7 April in that year the Land Administration Commission, on the Minister's behalf, offered a new lease of part of the Alkoombie holding exclusive of a defined area to be included in another lease holding but inclusive of another defined area to be surrendered from that holding which was of an adjoining property. The purpose of these exchanges seems to have been to deal with problems arising from the shapes of the two properties. The new lease offered by the Land Administration Commission's letter of 7 April was of a different kind to a Pastoral Lease. It was to be a Grazing Perpetual Homestead Lease to commence on 1 July, 1988. In furtherance of this the letter of 7 April, 1988 required the defendant to execute a surrender of the existing Pastoral Lease and forward it together with the instrument of lease in respect of Alkoombie. -- 44 of 51 -- The instrument of surrender required by the letter of 7 April, 1988 was executed by the respondent on 10 May, 1988 and received by the Land Administration Commission on 23 of that month. The Pastoral Lease 14-4623 was also received there. There were delays- in preparing survey plans giving effect to the exchange of the two areas to which I have earlier referred. In the event the plans were received on 24 February, 1989. The new Grazing Perpetual Homestead Lease 14-23 was executed on 30 March, 1989 and, pursuant to s. 160(2) of the Act commenced on 1 July, 1988. It may be accepted that at the time of the execution of the contract of 15 August, 1988 the parties to the contract were aware of the developments in respect of the surrender of the Pastoral Lease and the issue of the Grazing Perpetual Homestead Lease to which I have referred. I should mention that it is true that the appellants apparently learned of the exchange between Alkoombie and the adjoining property later but nothing seems to turn on that . It appears that by the date of the contract the Pastoral ■r Lease under which Alkoombie was held had been surrendered. The new Grazing Perpetual Homestead lease, however confidently, its issue was anticipated, had in fact not issued. There is an endorsement oh the instrument of surrender of the surrender. It goes on to provide "now being GHPL 14-231 Cooktown" . The events to which I have earlier referred in context of s. 160 of the Act had the consequence that the surrender took effect on 30 June, 1988 and the terms of the new lease commenced from 1 July of that year. -- 45 of 51 -- 5 Although it would seem to follow that at the date of the contract the lease interest to which it referred had ceased to exist no one suggested that the contract was thereby rendered invalid. It would seem that the parties to the transaction regarded themselves as buying and selling Alkoombie under whatever title it might be held and perhaps in confident * anticipation of the issue of the new lease. In this context I might say that there was no issue as to the admissibility of evidence of the state of knowledge of the parties from the point of view of identifying the subject matter of their contract. As the contractual date of settlement (15 February, 1989) approached it was evident that the instrument of lease for the new Grazing Perpetual Homestead Lease would not issue in time for that completion date. The date for completion was extended ultimately to 1 March, 1989, time remaining of the essence. In this context in a letter of 22. February, 1989 the respondent's solicitor advised the appellants that "the replacement GHPL" was expected to be issued within the next few days. There was an attempt by the appellant's solicitors to obtain an extension to 6 March, 1989 but the date remained fixed at 1 March. On 1 March, 1989 the respondent's solicitors faxed the appellants. They advised that "GHPL 231 replacing PH1 4-4623 in respect of Alkoombie Station" was recorded in the register of the Land Administration Commission and the respondent's executed transfer would be accepted there for registration. The communication went on that the mortgage and related release of mortgage were also held at the Commission together with "the lease P.H. 14-4623 (surrendered)". The documents lodged with the -- 46 of 51 -- 6 Land Administration Commission "would be available for inspection should you require a search". The transaction was not completed on 1 March, 1989. This was essentially because the new instrument of lease in respect of the Grazing Perpetual Homestead Lease had not issued and might, it was then anticipated, not issue for some 12 weeks. As we know it was. executed ("issued") on 30 March. On any view of it it was not executed and not available on 1 March. After an exchange of communications in which the appellant's solicitors reiterated their desire to finalise the contract although the respondent was not in a position to settle in accordance with its terms the respondent gave notice dated 2 March, 1989. By this she elected to terminate the contract on the ground of the appellant's failure to attend its settlement and otherwise complete and to declare the deposit forfeit. This termination was not accepted by the appellants who required performance and ultimately instituted proceedings for specific performance. After a trial judgment was given for the respondent a^d the declaration made that she had validly terminated the contract. It was held that the deposit was repayable to the appellant who were ordered to pay the respondent ' s costs of the action. It is of course from that decision that this appeal is brought. ' ' The case seems to me to turn essentially on the consequences of cl. 2 of the contract in the circumstances existing at the date of settlement on 1 March, 1989. Clause 2 is expressed to require the balance purchase price "in exchange for", among other things, an executed transfer "accompanied by the instrument of -- 47 of 51 -- title". I may say that it seems to me difficult to avoid the inference that the "instrument of title" referred to in cl. 2 is to be taken to be the Grazing Perpetual Homestead Lease. The obligations of vendor and purchaser under a clause such as cl. 2 are interdependent, concurrent or reciprocal; Dainford Ltd, v. Juana Ptv. Ltd. (1986) 1 Qd. R. 396 401, Sunbird Plaza Ptv. Ltd, v. Malonev (1988) 166 C.L.R. 245. At this point I digress to say that it seems to me that the effect of dealings with land under the Land Acts, in the areas relevant to present concern, bear no comparison with the dealings with land under the Real Property Acts. Under the latter legislation title is by registration and conveyance by instrument is effectual to past title only when registered; Real Property Act 1861-1988 s. 43 and Breskvar v. Wall (1971) 126 C.L.R. 376. Registered title is then protected by the indefeasibility provisions of the legislation. Nothing like this applies in respect of the transfer of leases under the Land Act. There is nothing to give the "historical register sheet" kept at the Land Administration Commission anything like the status in terms of •i conclusiveness and indefeasibility conferred by the Real Property Act on registration under that legislation. It is true that under the Land Act particulars of leases and of transfers and of other dealings are, by s. 226 and 227 to be recorded in a register or registers and that "priority of registrations of the dealings" is to be maintained. That is however as far as it goes . I cannot therefore persuade myself that the historical register search was "an instrument of title" within the meaning of cl. 2 of the contract. In fact as at the -- 48 of 51 -- 8 *> 0 date of settlement of 1 March, 1989 and as I have already said the Perpetual Lease had been surrendered and the Grazing Perpetual Homestead Lease had not issued. It may well be that all the respondent had to offer was whatever obligation was imposed on the Governor in Council to issue a new lease; see s. 160(1) of the Act that was subject to s. 162 which would seem to impose serious inhibition on obtaining the intervention of the Court to enforce such rights. Again that is as far as it could go. There seems to be no comfort in the description in the contract particulars of the subject matter of the contract being Pastoral Lease number 14-4623 located at the ANZ Bank, Mareeba. That had been surrendered and was in the office of the Land Administration Commission. One may accept the learned trial judge's characterisation of the transaction as a contract for the purchase of "the rights or expectations of rights" that would be held by the respondent in Alkoombie as at the date of settlement although to do so is not without difficulty in the circumstances as I have outlined them. In any event there seems to me to have been nothing capable of satisfying the requirement of cl. 2 of the contract that an instrument of title accompany the duly executed transfer. The appellant ' s corresponding duty to tender was only capable of arising when there was. It follows that on 1 March, 1989 the respondent was not in a position to complete in terms of cl. 2 and settle the contract and the occasion for the appellant's performance as contemplated by cl. 2 did not arise. The -- 49 of 51 -- 9 O 1 appellant's failure to settle therefore affords no basis for the respondent's termination of the contract. It seems to me not to the point for present purposes that delay in the issue of the new Grazing Perpetual Homestead Lease was not through-any default of the respondent. That may have consequences in other circumstances but relevantly for present purposes did not afford the respondent a basis to terminate the contract. Any tender on the appellant's behalf on 1 May, 1989 would have been futile. The respondents giving notice of termination of 2 March, 1989 constituted a repudiation on her part of the contract but it was not accepted. The contract therefore continues on foot and with it the appellant's entitlement to specific performance. There are one or two other matters to be mentioned. One is that I think it will be sufficiently clear by now that I regard the subject matter of the contract as sufficiently certain to admit of the contract ' s enforcement. The second point relates to a special condition of contract making the sale subject to the consent of the Minister for Land to the transfer of leaseholds under the provisions of the Land Act. The Minister's delegate consented on 3 December, 1988 on the basis of the issue of the new Grazing Homestead Perpetual Lease. That would seem sufficient. ' In any event cl. 16 of the standard conditions of contract is to the effect that if necessary Ministerial consent is not granted by the date of completion the parties have the option to terminate the contract upon which the deposit becomes repayable. Any rights which may have subsisted under the contract in respect -- 50 of 51 -- 10 of a failure of Ministerial approval were overtaken,- or so \it j seems to me, when the respondent insisted on completion on 1 March. She gave notice of termination on grounds not referable to cl. 16 and purported to forfeit the deposit inconsistently with that clause* In sum as to the Ministerial consent point it seems to me that there was a consent within the meaning of the special condition of contract. Clause 16 has no application. The outcome of all this is, it seems to me, that the appeal should be allowed, the judgment below should be set aside and the plaintiffs should have specific performance of the contract. J t. I -- 51 of 51 --