Redapple and Howgate v Hely [1931] HCA 41

Redapple and Howgate v Hely [1931] HCA 41

The purchasers contracted with knowledge of the inaccuracies in the vendor's certificate of title and the contract specifically addressed these by requiring the vendor to attempt, but not guarantee, amendment. The vendor satisfied her obligation by making a genuine application, and her offer to renew the application further negated any breach. In these circumstances, the purchasers were not entitled to rescind when they did.

Parties
Applicant: Joseph Redapple; Applicant: Abraham Wilfred Wustemann Howgate; Respondent: Catherine Hely
Jurisdiction
Australia
Procedural Posture
Vendor and Purchaser Summons (appeal) / On Appeal From the Supreme Court of Victoria
Outcome
Appeal dismissed; Supreme Court decision affirmed as varied.
Legal Topics
Vendor and Purchaser, Sale of Land, Boundaries, Title to Land, Rescission of Contract
Property Law Vendor and Purchaser Sale of Land Boundaries Title to Land Rescission of Contract

Case Brief

Summary, issues, holding and outcome

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Parties

Joseph Redapple

Applicant

Abraham Wilfred Wustemann Howgate

Applicant

Catherine Hely

Respondent

Procedural Posture

Vendor and Purchaser Summons (appeal) / On Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether the purchasers were entitled to rescind the contract due to the defect in the vendor's title arising from boundary discrepancies and failure to amend the certificate of title.
  2. 2 Whether the special conditions of the contract imposed an absolute obligation on the vendor to amend the certificate of title.
  3. 3 Whether the purchasers' acceptance of title and taking possession precluded their right to object or rescind.

Ratio Decidendi

The purchasers contracted with knowledge of the inaccuracies in the vendor's certificate of title and the contract specifically addressed these by requiring the vendor to attempt, but not guarantee, amendment. The vendor satisfied her obligation by making a genuine application, and her offer to renew the application further negated any breach. In these circumstances, the purchasers were not entitled to rescind when they did.

Court Disposition

Appeal dismissed; Supreme Court decision affirmed as varied.

Orders

  • Judgment of the Supreme Court varied by inserting after the words 'that this summons be dismissed' the words 'without prejudice to the rights of the parties'; otherwise appeal dismissed with costs.