Measures v McFadyen [1910] HCA 74

Measures v McFadyen [1910] HCA 74

The first count fails because the breach of the 'forthwith' covenant was complete before the transfer, and under sections 51 and 52 of the Real Property Act 1900 (NSW) such a right to sue does not pass to the transferee. The plaintiff was not entitled to recover substantial damages under the first count. Where damages are assessed generally upon both a good and a bad count, the proper course is a trial de novo, not judgment for either side.

Parties
Appellant; Defendant: Rank Joseph Lappen Measures; Respondent; Plaintiff: Mary McFadyen
Jurisdiction
Australia
Judgment Date
16 December 1910
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales (decision of Supreme Court Reversed by High Court After Special Leave to Appeal Granted)
Outcome
Appeal allowed. Order for trial de novo.
Legal Topics
Transfer of Land, Breach of Covenant, Assignment of Reversion, Damages, Lease Covenants, Statutory Interpretation
Property Law Landlord and Tenant Transfer of Land Breach of Covenant Assignment of Reversion Damages Lease Covenants Statutory Interpretation

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Parties

Rank Joseph Lappen Measures

Appellant; Defendant

Mary McFadyen

Respondent; Plaintiff

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales (decision of Supreme Court Reversed by High Court After Special Leave to Appeal Granted)

Legal Issues

  1. 1 Whether a right to sue for damages for a breach of covenant, not being a continuing breach and complete before transfer, passes to the transferee of land under sections 51 and 52 of the Real Property Act 1900 (NSW)
  2. 2 Interpretation of 'forthwith' in a lease covenant
  3. 3 Practice regarding damages assessed generally on good and bad counts

Ratio Decidendi

The first count fails because the breach of the 'forthwith' covenant was complete before the transfer, and under sections 51 and 52 of the Real Property Act 1900 (NSW) such a right to sue does not pass to the transferee. The plaintiff was not entitled to recover substantial damages under the first count. Where damages are assessed generally upon both a good and a bad count, the proper course is a trial de novo, not judgment for either side.

Court Disposition

Appeal allowed. Order for trial de novo.

Orders

  • Trial de novo ordered; parties have leave to amend as advised. No order as to costs of first trial.