TWO DECISIONS OVER-RULED

Chronicle (Levin), 22 December 1947, Page 4

TWO DECISIONS OVER-RULED

JUDGMENT GIVEN IN PROPEItTY DISPTJTE A contract made between two or more parti'es for the sale or pur- ■ chase of land subject to the consenG of the Land Saies Court remained bindin'g. If, however, an alteration was made by the Court in terms or price, then either party could withdraw without the consent of the other, because in eflect the Land Saies Court woula be altering an existing contract or atempting to get the pafties to | agfee to a different contfact. ' I This was the View expressed by Mr. 'A. M. Goulding, S.M., in a ! reserved judgment issued in respect I of a case inVolVing the sale of a property in Levin. I By this judgment Mr. Goulding j is* over-ruling twO previous de- | cisions, one made by himself and 1 one by Mr. A. A. McLachlah, | S.M., which, ih the Magistrate'S i Court, Levin, last week, Mr. N. M. i Thomson submitted were wrong in | law. The case was one in which two ! students of Massey Agricultural j College, Howard Penhall and Paul 1 Slater Yalden, filed a claim against Kenneth Shaw, of Levin, for the - return on the grounds of fraudulent misrepresentation, of £25 placed as a deposit on a property offered for sale by defendant. Defendant was represented by Mr. Thomson, Levin, and plaintift's, by Mr. F, G. Opie, Palmerston North. Plaintiffs claimed that they had been given to understand that the land, which they required fof nursery purposes, was free of stones, but after a contract for the purchase .of fhe property had been signed by them, they had discovered the land to be stony and consequently unsuitable for their purposes. Mr. Opie submitted that quite apart from the allegation of fraud, the contract could not be enforced as the purchaser had withdrawn from it before the consent of the Land Saies Court had been given. He based his submissions on two previous judgments. In reply, Mr. Thomson inVited the magistrate to over-rule the previous decisions as being wrong in law. He pointed out that otherwise there would be nothing to prevent any vendor or purchaser entering into a contract and then cancelling it at pleasure at any time prior to the final consent of the Land Saies Court. Business, he said, could not be conducted in that way. In this case a proper contract had been drawn up and executed. Subsequently the purchaser had purported to withdfaw from it, and later the Land Saies Court had consented to the full price. The law, counsel submitted, was that a conditional contract conferred a conditional validity oh the transaction and created an inchoate right, as the result of which neither party could withdraw without the consent of the other until the consent of the Land Saies Court had been refused or granted on terms acceptable to either party. Dismissing the allegation of fraud, the magistrate said the plaintiffs had themselves discovered the condition of the land and had acquiesced by the payment, some time after the signing of the document, of the £25 deposit. -It, therefore, remained, he added, to decide whether they were entitled at law to recover the deposit under the provisions of the Land Saies Act. In the following reserved judgment, Mr. Goulding gave his decision in favour of defendant: "The plaintiffs' rely upon Brunskill v.

Tringham, decided by me and also on Ralston v. Heremaia decided by Mr. McLachlan. It is suggested, upon these decisions, that either party to a contract for the sale or purchase of land which requires the consent of the Land Saies Court, under the Servicemen's Settlement and Land Saies ' Act; may repudiate sueh -contract. b.efoi'e consent is given, ahd in" the base of the purchaser, recover the deposit. The defence is that that proposition is not supported by Brunskill v. Tringham, and that in so far as it is supported by Ralgton v. Heremaia it is wrong in law. "Counsel for defendant does not quarrel with my decision, but is • critical of one passage in it to this , effect : 'Looking at the matter from : that point of view alone, I think there is much support for the con- ; tention of counsel for Brunskill that a tfansactiOn, which is entered into, subject to the consent of the Land Saies Court, is entifely conditional and that until the decision of the Court is filed in the Court, either party can withdraw •from the transaction.' "I think there is an obvious error in that passage and that the word 'Court' should read 'committee.' Looking at the passage as it stands in the judgment, it is, I think, open to a somewhat wider mterpretation than I intended "An important question to' be answered in all these cases is whether there is a good and valid contract for the sale of land. Nothing can be clearer in the pfesent case than that there was such h good and valid contract. Signed by both plaintiffs and defendaht, it was their concluded bafgaih, subject only to the consent of an' outside tfibunal, the Land Saies Court."