Hoad v Swan [1920] HCA 50

Hoad v Swan [1920] HCA 50

Where a sale of land contract provides that time is of the essence, failure to pay an instalment on the stipulated date entitles the vendor to determine the contract, but whether the vendor has elected to determine or affirm the contract is a question of fact which must be decided on evidence; as this issue was not put to the jury, a new trial was ordered.

Parties
Appellant: John William Hoad; Respondent: Arthur Donovan Swan; Respondent: William Vanstone; Respondent: Catherine Kelly (executrix of Frederick James Kelly)
Jurisdiction
Australia
Judgment Date
26 August 1920
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales
Outcome
Appeal allowed; judgment reversed; new trial ordered; costs to abide event
Legal Topics
Sale of Land, Breach of Contract, Election, Instalment Payments, Essence of Time
Contract Law Property Law Sale of Land Breach of Contract Election Instalment Payments Essence of Time

Case Brief

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Parties

John William Hoad

Appellant

Arthur Donovan Swan

Respondent

William Vanstone

Respondent

Catherine Kelly (executrix of Frederick James Kelly)

Respondent

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether failure to pay the first instalment on the due date entitled the vendors to determine the contract
  2. 2 Whether the respondents had elected to determine the contract or to treat it as subsisting before resale
  3. 3 Effect of time being of the essence in sale of land contracts

Ratio Decidendi

Where a sale of land contract provides that time is of the essence, failure to pay an instalment on the stipulated date entitles the vendor to determine the contract, but whether the vendor has elected to determine or affirm the contract is a question of fact which must be decided on evidence; as this issue was not put to the jury, a new trial was ordered.

Court Disposition

Appeal allowed; judgment reversed; new trial ordered; costs to abide event

Orders

  • New trial ordered
  • Costs in all Courts to abide the result of the new trial