Kennedy v Vercoe [1960] HCA 64

Kennedy v Vercoe [1960] HCA 64

The defendant was not entitled to rescind or treat the contract as discharged because his misrepresentation case failed, cl. 9 no longer operated as a preliminary condition after the parties put him in possession of the business and occupation of the shop before completion, and there had been no final or definitive default in obtaining landlord acceptance. The contract concerned a local going concern in the shop and was sufficiently analogous to a sale of a business and site to be specifically enforceable, subject to special provisions requiring steps to obtain the landlords' acceptance of the defendant as tenant.

Jurisdiction
Australia
Procedural Posture
Suit for Specific Performance of a Contract for Sale and Purchase of a Laundry and Dry Cleaning Business / Appeal to the High Court of Australia From a Decree of Myers J. in the Supreme Court
Outcome
Appeal allowed with costs; Supreme Court decree discharged; contract declared specifically enforceable subject to provisions concerning acceptance of the defendant as tenant; counter-claim dismissed with costs.
Legal Topics
['specific Performance' 'sale of Business and Goodwill' 'condition Requiring Acceptance as Tenant' 'rescission' 'lease Assignment and Premium']
['contract Law' 'equity' 'property Law' 'landlord and Tenant'] ['specific Performance' 'sale of Business and Goodwill' 'condition Requiring Acceptance as Tenant' 'rescission' 'lease Assignment and Premium']

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Procedural Posture

Suit for Specific Performance of a Contract for Sale and Purchase of a Laundry and Dry Cleaning Business / Appeal to the High Court of Australia From a Decree of Myers J. in the Supreme Court

Legal Issues

  1. 1 ['Whether cl. 9 of the contract, making the contract subject to the purchaser being accepted as tenant by the landlords, enabled the defendant to treat himself as discharged from performance and recover sums paid.' 'Whether the plaintiff was entitled to a decree of specific performance although the landlords had not unconditionally accepted the defendant as tenant by the commencement of the suit.' 'Whether a contract for sale of a business and goodwill, without an express assignment of the lease, was within the remedy of specific performance.']

Ratio Decidendi

The defendant was not entitled to rescind or treat the contract as discharged because his misrepresentation case failed, cl. 9 no longer operated as a preliminary condition after the parties put him in possession of the business and occupation of the shop before completion, and there had been no final or definitive default in obtaining landlord acceptance. The contract concerned a local going concern in the shop and was sufficiently analogous to a sale of a business and site to be specifically enforceable, subject to special provisions requiring steps to obtain the landlords' acceptance of the defendant as tenant.

Court Disposition

Appeal allowed with costs; Supreme Court decree discharged; contract declared specifically enforceable subject to provisions concerning acceptance of the defendant as tenant; counter-claim dismissed with costs.

Orders

  • ['Appeal allowed with costs.' 'Decree or order of the Supreme Court discharged.' 'Declare that the contract in the pleadings mentioned should be carried into execution and specifically performed.' 'Declare that to that end the defendant was and is bound to do whatever may be reasonably required of him on the part of...