MERCANTILE CONSTRUCTIONS PTY. LIMITED V. B.B. AND B. PTY. LIMITED

MERCANTILE CONSTRUCTIONS PTY. LIMITED V. B.B. AND B. PTY. LIMITED

The appellant cannot succeed because the defence of hardship was not properly pleaded or particularised, nor were the necessary facts or legal grounds properly investigated at trial or on appeal. The risks alleged were either accepted by the appellant at contract or not substantiated as hardship that would justify refusal of specific performance.

Parties
Appellant: Mercantile Constructions Pty. Limited; Respondent: B. B. and B. Pty. Limited
Jurisdiction
Australia
Judgment Date
18 September 1964
Procedural Posture
Appeal / High Court of Australia Appeal From Full Court of Supreme Court Decision
Outcome
Appeal dismissed with costs.
Legal Topics
Specific Performance, Hardship, Building Contracts, Local Government Requirements
Equity Contract Law Property Law Specific Performance Hardship Building Contracts Local Government Requirements

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Parties

Mercantile Constructions Pty. Limited

Appellant

B. B. and B. Pty. Limited

Respondent

Procedural Posture

Appeal / High Court of Australia Appeal From Full Court of Supreme Court Decision

Legal Issues

  1. 1 Whether specific performance should be refused on the ground of hardship related to building alterations and local government requirements
  2. 2 Whether the encroachment and work done without council consent constituted sufficient hardship to refuse specific performance

Ratio Decidendi

The appellant cannot succeed because the defence of hardship was not properly pleaded or particularised, nor were the necessary facts or legal grounds properly investigated at trial or on appeal. The risks alleged were either accepted by the appellant at contract or not substantiated as hardship that would justify refusal of specific performance.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.