Summary
Specific performance was upheld where the vendor had admitted the obligation to measure the land and provide title documents but failed to do so. In those circumstances, the purchaser’s non-payment within the stated three months did not establish default. His eventual court-ordered deposit, made within extended time from a later property sale, did not show that he lacked funds earlier. An unpleaded hardship objection could not be raised for the first time in the Supreme Court.
Issues
- Whether the purchaser’s readiness and willingness was disproved by delayed payment and the source of his eventual deposit.
- Whether the vendor could resist specific performance on an unpleaded hardship ground.
Held
- Although measurement was not expressly specified in the written agreement, the vendor admitted in her reply and evidence that measurement and ascertainment of consideration were agreed. Until then, the purchaser was not obliged to pay the balance. (¶ 10)
- Insistence on title and land-ceiling documents was prudent given the title circumstances. The evidence did not establish that the relevant clearance had been shown at execution; the concurrent finding of vendor default was justified. (¶ 9–10)
- Deposit within the extended time fixed by the trial court supported the purchaser’s bona fides. Using proceeds from a 1993 sale did not itself establish inability to pay in 1985 or at the later notice; he was not required to keep the same money deposited throughout the intervening years. (¶ 10)
- The vendor had not pleaded hardship in her written statement. Such a plea could not be introduced at this stage, particularly against concurrent findings of the purchaser’s readiness and willingness. (¶ 11–12)
Result
Appeals dismissed. Trial court’s decree for specific performance of the agreement dated 30 December 1985, as affirmed by the High Court, confirmed. No order as to costs.