Noske v McGinnis [1932] HCA 32

Noske v McGinnis [1932] HCA 32

As the vendor either deliberately abstained from making title to the property, or entered into the contract with knowledge of his wife's claim but made no reasonable effort to remove her caveat, he cannot use the rescission provision to avoid his contractual obligations. The clause did not justify rescinding the entire contract or that part relating to the hotel. Nor did the New South Wales Moratorium Act bar relief in Victoria. The plaintiffs were entitled to general damages for loss of the bargain, and the rule in Bain v. Fothergill did not apply where the vendor's own conduct caused the failure.

Parties
Appellant; Defendant: Traugott Johann Noske; Respondents; Plaintiffs: Ellen Mary McGinnis, Mary Dynon, Ignatius Marie McGinnis and Hilary Sebastian McGinnis (Warwillah Pastoral Company)
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From the Supreme Court of Victoria
Outcome
Appeal dismissed with costs.
Legal Topics
Sale of Land, Rescission of Contract, Specific Performance, Damages for Breach of Contract, Application of Foreign Statutes, Moratorium on Actions, Vendor and Purchaser, Incorporation of Terms From Statute, Title to Land, Concurrent Jurisdiction
Contract Law Private International Law Sale of Land Rescission of Contract Specific Performance Damages for Breach of Contract Application of Foreign Statutes Moratorium on Actions +4 more

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Parties

Traugott Johann Noske

Appellant; Defendant

Ellen Mary McGinnis, Mary Dynon, Ignatius Marie McGinnis and Hilary Sebastian McGinnis (Warwillah Pastoral Company)

Respondents; Plaintiffs

Procedural Posture

Appeal / Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether the vendor (Noske) could validly rescind the contract for sale/exchange of land by relying on the caveat lodged by his wife and the power of rescission under clause 3 of Table A of the Transfer of Land Act 1928 (Vict.)
  2. 2 Whether damages for loss of bargain are recoverable by the plaintiffs/respondents where the vendor (Noske) failed to convey clear title to the property, or the rule in Bain v. Fothergill applies
  3. 3 Whether the Moratorium Act 1930-1931 (N.S.W.) provided a defence or barred pursuit of remedies in the Victorian courts for breach of contract of sale

Ratio Decidendi

As the vendor either deliberately abstained from making title to the property, or entered into the contract with knowledge of his wife's claim but made no reasonable effort to remove her caveat, he cannot use the rescission provision to avoid his contractual obligations. The clause did not justify rescinding the entire contract or that part relating to the hotel. Nor did the New South Wales Moratorium Act bar relief in Victoria. The plaintiffs were entitled to general damages for loss of the bargain, and the rule in Bain v. Fothergill did not apply where the vendor's own conduct caused the failure.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appellant to pay respondents damages assessed at £10,828.
  • Appellant to pay the costs of the appeal.