Summers v Cocks [1927] HCA 46;

On the whole I am of opinion that this appeal should be dismissed so far as it relates to specific performance. There is great weight in the various considerations of which Mr. Davy in his able argument made the most. But when the circumstances are balanced as a whole, it seems to me the learned Chief Justice of Western Australia adopted the right course in refusing specific performance. In previous cases - most recently Fullers' Theatres Ltd. v. Musgrove[1] and Norton v. Angus[2] - I have stated my view of the duty of the Court in relation to that remedy; and I need not repeat it. I would, however, further refer to the judgment of Lord Parker of Waddington in Stickney v. Keeble[3] Applying the principles there stated, I think there are elements in the present case which should induce the Court to withhold its hand from granting the remedy asked for; and leave the appellant to recover such redress as the law absolutely entitles her to. It is stated in the judgment of McMillan C.J. that the vendor "certainly misled the purchaser as to the attitude of the Board, though without any fraudulent intent, and he did not inform him on 14th January" (should be 12th January) "that he had received a summons which showed that his licence was not then a perfectly clean one." It was the solicitor who, in Summer's absence, next day told defendant of the summons. Now, although the day for completion was 12th January, yet the summons was served on 11th January, and the position of the licence was then certainly precarious. The attitude of the Board was a material circumstance in gauging the chances of the licence, and, from the nature of the property, great candour was necessary. Moreover, according to practice, as we were told, though I say nothing as to the correctness of the practice, the compensation paid on delicensing is altogether incommensurate with the value of the property as a hotel. Reviewing the situation as a whole, and seeing that the respondent was in no way chargeable with fault in leading to the result of delicensing, I arrive at the conclusion stated. But this is a case where specific performance could be granted, and should be granted but for the attendant circumstances, which confer discretion on the Court to exclude the application of its jurisdictional power. I adopt the statement of my brother Starke as to the facts and reasoning leading both to the defendant's breach of contract and to the refusal of specific performance. The Court may, under the Judicature Act, substitute for the specific remedy that of damages. To this the appellant is justly entitled failing specific performance if she desires to have an inquiry.

[18]

On 11th December 1926 one Summers sold to Cocks for £4,000 cash, free from all encumbrances, certain land in Perth on which was erected the building known as the Cecil Hotel, and also certain furniture. Possession was to be given on 12th January 1927 and all rates, taxes and assessments and licence fees were to be adjusted to that date. McMillan C.J., who tried the action, held that Summers was not in a position to complete the contract because he could not on the date on which possession should have been given and the sale completed transfer a "clean" licence to the hotel. On that day, however, there was a general publican's licence in existence in the name of Summers, authorizing him to sell and dispose of liquor on the premises. This licence, unless forfeited in the meantime, remained in force until 31st December 1927. On 11th January 1927 the Licences Reduction Board, pursuant to powers in the Licensing Act 1911-1922, sec. 84, enabling it to reduce the number of licences in the State, summoned the vendor to show cause why the hotel premises should not be deprived of its licence; and on 17th February 1927 the Board decided to deprive the premises of the licence. It was then the duty of the Board to assess the compensation payable in respect of the premises deprived of its licence; and on the payment or tender of such compensation the Board causes notice of its decision to be published in the Gazette, and at the expiration of the current period for which the licence was granted the licence ceases, becomes void and cannot be renewed (Licensing Act, secs. 87-95). It is quite true that the Board, in deciding what premises should be deprived of their licences, considers (amongst other things) the character of the accommodation and the manner in which the business has been conducted (sec. 88), but this power to reduce the number of licences in no wise aflects the validity or efficacy of any licence. The licence to the Cecil Hotel was not liable to forfeiture or suspension for any contravention of the Act (cf. secs. 175, 116) and was therefore what is called a "clean" licence (Tadcaster Tower Brewery Co. v. Wilson[21]). Consequently, the decision of the learned Chief Justice on this point cannot, I think, be supported.

[19]

The Chief Justice, however, also held that if there was a contract enforceable at law, this case was not one in which the Court should, in the exercise of its discretion, grant specific performance. The discretion is, of course, judicial, exercisable according to rules more or less settled and fixed by the Courts of equity. The Licences Reduction Board, in considering whether the number of licences in the State should be reduced and in determining which licences should cease to be in force, has many matters to consider (see Act secs. 84, 88), but it is common knowledge that the character of accommodation afforded by any licensed premises and the manner in which the business has been and is being conducted as a place of accommodation and refreshment for the public weigh heavily with the Board (see sec. 88). In the present case the Chief Justice found that the omission of Summers to keep the hotel premises in a proper state of repair led to the premises being deprived of their licence. Moreover, he found also that Summers sold the property because he knew that the licence was in some jeopardy, and that he was wanting in candour towards the purchaser. In my opinion it would be unsafe and wrong for us to disturb these findings of the Chief Justice, who saw and heard the witnesses. If they are correct, the Chief Justice acted within the limits of his judicial discretion in refusing specific performance. Summers or his personal representative is, nevertheless, entitled to his or her remedy in law upon the contract, and I have no doubt that but for his decision that Summers was not in a position to complete the contract according to its terms, the Chief Justice would have directed an inquiry as to damages. A statute corresponding to the Judicature Act is in force in Western Australia and there was ample jurisdiction in the Supreme Court of Western Australia to direct such an inquiry in this action. It is now the duty of this Court to give the directions that the Supreme Court ought to have given. The compensation payable under the Licensing Act will affect the amount of damages payable by Cocks, but that is not a question on which we need enter.

Summers v Cocks [1927] HCA 46; - HCA 1927 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (30 paragraphs)

Summers v Cocks [1927] HCA 46; (1927) 40 CLR 321 (22 November 1927)

Parties

Cases Cited (1)