George v Roach [1942] HCA 22

George v Roach [1942] HCA 22

By majority, the provision for valuation by the named valuer was an essential term of the contract and not solely for the benefit of the vendor; as the valuer refused to act and no valuation was made, the condition precedent was not fulfilled and there was no enforceable contract. The respondent was entitled to recover the amounts paid due to total failure of consideration.

Parties
Appellant/defendant: George; Respondent/plaintiff: Roach
Jurisdiction
Australia
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court of South Australia
Outcome
Appeal dismissed with costs
Legal Topics
Sale of Business, Valuation Clauses, Waiver, Failure of Consideration, Money Had and Received
Contract Sale of Business Valuation Clauses Waiver Failure of Consideration Money Had and Received

Case Brief

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Parties

George

Appellant/defendant

Roach

Respondent/plaintiff

Procedural Posture

Appeal / Judgment on Appeal From Supreme Court of South Australia

Legal Issues

  1. 1 Is the provision for valuation by a named valuer a condition precedent to the enforceability of the contract?
  2. 2 Can the vendor waive the right to valuation and enforce the contract at the minimum price?
  3. 3 Was there a total failure of consideration entitling the purchaser to recover the money paid?

Ratio Decidendi

By majority, the provision for valuation by the named valuer was an essential term of the contract and not solely for the benefit of the vendor; as the valuer refused to act and no valuation was made, the condition precedent was not fulfilled and there was no enforceable contract. The respondent was entitled to recover the amounts paid due to total failure of consideration.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs