Butts v O'Dwyer [1952] HCA 74

Butts v O'Dwyer [1952] HCA 74

The memorandum of lease was not itself an executory agreement to grant another lease and could not operate as a registered lease without ministerial consent and registration, but the transaction implied an obligation on the lessor's executors to do all reasonable and proper acts and execute documents necessary to enable and support the plaintiff's application for the Minister's consent to the transfer by way of lease. Section 272 did not make it too late to seek that consent. If consent is obtained, the notice of 5th April 1951 may operate as an exercise of the option, but any transfer by way of sale pursuant to the option would require further ministerial consent.

Jurisdiction
Australia
Procedural Posture
Appeal and Cross Appeal From Decree of the Supreme Court of New South Wales in Its Equitable Jurisdiction Concerning Specific Performance and Related Relief / High Court Appeal
Outcome
Decree varied; subject to the variation, appeal dismissed with costs; cross-appeal dismissed without costs.
Legal Topics
['specific Performance' 'unregistered Memorandum of Lease' 'ministerial Consent to Transfer of Conditional Purchase Land' 'implied Contractual Obligation' 'option to Purchase' 'real Property Act Registration']
['equity' 'property Law' 'real Property' 'crown Lands'] ['specific Performance' 'unregistered Memorandum of Lease' 'ministerial Consent to Transfer of Conditional Purchase Land' 'implied Contractual Obligation' 'option to Purchase' 'real Property Act Registration']

Case Brief

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Procedural Posture

Appeal and Cross Appeal From Decree of the Supreme Court of New South Wales in Its Equitable Jurisdiction Concerning Specific Performance and Related Relief / High Court Appeal

Legal Issues

  1. 1 ["Whether an unregistered memorandum of lease of land subject to s. 272 of the Crown Lands Consolidation Act 1913 N.S.W. supported equitable relief against the lessor's executors." 'Whether it was too late to apply to the Minister for consent to the transfer by way of lease.' "Whether an obligation should be implied requiring the lessor's representatives to do reasonable and proper acts and execute documents to enable and support an application for ministerial consent." "Whether the lessee's notice dated 5th April 1951 could operate as an exercise of the option to purchase if ministerial consent to the lease were later obtained." 'Whether a further ministerial consent would be required for a transfer by way of sale pursuant to the exercised option.']

Ratio Decidendi

The memorandum of lease was not itself an executory agreement to grant another lease and could not operate as a registered lease without ministerial consent and registration, but the transaction implied an obligation on the lessor's executors to do all reasonable and proper acts and execute documents necessary to enable and support the plaintiff's application for the Minister's consent to the transfer by way of lease. Section 272 did not make it too late to seek that consent. If consent is obtained, the notice of 5th April 1951 may operate as an exercise of the option, but any transfer by way of sale pursuant to the option would require further ministerial consent.

Court Disposition

Decree varied; subject to the variation, appeal dismissed with costs; cross-appeal dismissed without costs.

Orders

  • ['Omit from the decree below the declaration and orders for specific performance of the agreement to lease, the related orders for application to the Minister and registration of a lease, and the order as to costs.' 'Substitute a declaration that the defendants-appellants as executor and executrix of Thomas Butts...