King v Poggioli [1923] HCA 11

King v Poggioli [1923] HCA 11 - HCA 1923 case summary — Zoe

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his cattle out of the paddocks, that he had no place to put them to. He said if I would give him a few days grace he would do hi best to come down within two or three days and move them. said he was already packed up and was in a hurry to get away to town, and was waiting to go into town. I told him to be sure an come down and remove his cattle, and he said he would. Then h left. None of his family remained behind ; I took possession of 1 house. Defendant's cattle were then depastured on practically th whole of the cattle property. They were not depasturing on two house paddocks - an area about 50 or 60 acres. The ho paddocks were eaten out. The rest of the property was good, | estimated there were 250 to 300 head of his cattle there - n cattle of different ages and sexes ; they were in good condition," Between 31st March and 5th June, when appellant's cattle removed from the property, the parties met on several occas 1 The evidence of the respondent as to what took place on occasions is as follows : - ''I saw defendant in Tenterfield about 3rd or 4th April. I asked him why he had not come down to remo his stock, when he had promised me when he left on 31st March. said that he had trouble in getting drovers; that he was sorry I told him he had better hurry up and find his drovers, and com down and remove his cattle quickly within the next day or two. 1 saw him next about 5th or 7th April in Tenterfield - twenty- miles from the property. I again asked him why he had not down to remove his cattle. He said he had not had the means: getting down. J replied, if that was his only difficulty I would d him down. He said Yes, that would do him; and we made a: ments for me to drive him down the following day when he said would come down specially for the purpose of removing his cattle. _ drove him down to the property the following afternoon, about 7th 8th ; and he stayed at the house that night. The next morning he on horseback, telling me that he was going to remove his cattle. was away all day, came back that evening just before tea. [asked him whether he had got all his cattle together, got them mustered ready for moving; and he told me No, he had not. We let matters dro

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in the matter, to which he would not give a definite answer at all - when I asked him when he was going to remove his cattle he said he could not say for certain as he was not able to arrange matters. I then asked him was it his intention to move the cattle, and to this T could not get an answer either; he answered indirectly. He beat round the bush, and said half-a-dozen things that were not on the subject at all. At last, after a good deal of talk, I said to him 'I want an answer, Yes or No - are you going to move those cattle?' to which it was hard to get an answer; and at last I stopped him and said: '1 do not want any of that talk - are you going to move the cattle 2' to which he replied, after a lot oi talk, 'No.' I then asked him why he did not intend to move his cattle; and he said that his solicitors advised him not to do so as I had not paid the purchase- money; to which I replied that it was not my fault that I had not paid the purchase-money as his title was not in order for the property, and he did not expect me to hand over the money without my being able to get title. I told him that since I knew he did not intend to move the cattle I would have to take steps to protect myself in the matter. His cattle were then in the two large paddocks. His stock were then on the 1,500 acres. On 31st March or 3rd April he had a few head of stock on a small paddock - about 400 acres - which I told him I was going to remove into the other paddocks as I wanted that paddock for some cattle that I had promised could come there on agistment. He said: 'Very well.' Myself and a man moved the stock off the 400 acres on to the rest. I saw defendant to speak to once or twice after that before I got possession of the whole, between the beginning of April and the beginning of June. Whenever I saw him, he asked me why I did not settle up for the property, and I told him that until he got his title in order I could not do anything in the matter, and that, besides, he still had his cattle on the property and made no attempt to move them, which had put me in a very awkward position, and, as things had gone, I considered I was entitled to compensation through his action. His stock remained on the 1,500 acres up to 5th June. They were removed then."' On cross- examination the respondent said: - 'I gave defendant clearly to understand that I would expect him to deliver possession on 31st

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deficiency is in size of the land or in character of title, or in time possession or enjoyment. As Lord Eldon put it, in Wood v. Griffith (1), "No one will dispute this proposition, that if a man offers to sell an estate in fee simple, and it appears that he is unable to make a title to the fee simple, he cannot refuse to make a title to all that hehas. . . . Ifa person possessed of a term for 100 years con- tracts to sell the fee, he cannot compel the purchaser to take, but the purchaser can compel him to convey, the term, and this Court will arrange the equities between the parties." This means compensa- tion. I find that so recently as 1915 Lord Haldane stated in the Privy Council, in a brief and succinct form, the rule of equity on the sub- ject : - " Subject to considerations of hardship he " (the purchaser) "may elect to take all he can get, and to have a proportionate abate- ment from the purchase-money. But this right applies only to a deficiency in the subject matter described in the contract. It does not apply to a claim to make good a representation about that subject matter made not in the contract but collaterally to it" (Rutherford v. Acton-Adams (2) ). In the present case the contract was for conveyance and possession of certain land on 31st March. In other words, the purchaser was to have, under the contract, enjoyment of the benefits of the land as from 31st March, and he did not get that enjoyment till 5th June, when the grass had been eaten down by the vendor's stock. There was, therefore, a deficiency in the subject matter of the contract - the subject matter being the Jand as from 31st March, not as from 5th June, nor as from some future year. When we say that property is sold, we imply that the purchaser is to have the right to the enjoyment and control of the property to the extent indicated in the contract ; and it is a diminu- tion of the property sold if the enjoyment and control be postponed after the date fixed therefor for ten years, or for ten weeks, or for ten days; just as the present value of money payable twelve months hence is less than the value of money payable immediately. Where A contracted to sell a fee simple to C, and B, the wife of A, refused to convey her life interest, A was ordered to convey to C his own reversionary estate with compensation for the deficient life interest

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Judgment (161 paragraphs)

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