SIMON V. PAYNE 15/1951

SIMON V. PAYNE 15/1951

The oral agreement of 17 February 1948 constituted a binding and immediate variation of the prior contract requiring the defendant to pay the weekly sum of £15 for three years, provided the plaintiff procured the issue of the carrying licence to the defendant. The plaintiff did all necessary to fulfil this obligation, and any failure or delay was due to the defendant’s unwillingness or default. The defendant, having taken and enjoyed the benefits of the goodwill and assets, is liable for the agreed consideration unless and until the contract is lawfully rescinded or frustrated, and cannot avoid liability due to his own conduct or the change in statutory licensing conditions.

Parties
Plaintiff: Simon; Defendant: Payne
Jurisdiction
Australia
Judgment Date
01 August 1952
Procedural Posture
Contract / Appeal From Full Court of the Supreme Court
Outcome
Order of Full Court varied; otherwise appeal dismissed with costs (with deduction).
Legal Topics
Variation of Contract, Illegality, Performance of Contract, Damages for Breach, Transfer of Business Licences, Oral Agreement
Contract Law Variation of Contract Illegality Performance of Contract Damages for Breach Transfer of Business Licences Oral Agreement

Case Brief

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Parties

Simon

Plaintiff

Payne

Defendant

Procedural Posture

Contract / Appeal From Full Court of the Supreme Court

Legal Issues

  1. 1 Whether the oral agreement of 17 February 1948 constituted a binding variation to the original contract
  2. 2 Whether the plaintiff fulfilled the condition precedent to payment of weekly instalments by procuring the issue of the relevant licence to the defendant
  3. 3 Whether the agreement for weekly payment was illegal due to its terms concerning the transfer and use of licences

Ratio Decidendi

The oral agreement of 17 February 1948 constituted a binding and immediate variation of the prior contract requiring the defendant to pay the weekly sum of £15 for three years, provided the plaintiff procured the issue of the carrying licence to the defendant. The plaintiff did all necessary to fulfil this obligation, and any failure or delay was due to the defendant’s unwillingness or default. The defendant, having taken and enjoyed the benefits of the goodwill and assets, is liable for the agreed consideration unless and until the contract is lawfully rescinded or frustrated, and cannot avoid liability due to his own conduct or the change in statutory licensing conditions.

Court Disposition

Order of Full Court varied; otherwise appeal dismissed with costs (with deduction).

Orders

  • Judgment for the plaintiff for £548.11.5 together with an amount equal to the present value as on 12th December 1948 of £1416.8.7 payable in weekly amounts of £15 each.
  • Inquiry by the Registrar of the Supreme Court to ascertain the amount of such present value, unless the parties otherwise agree.