IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

CA 13/2002

Piukala

v

Fonohema

Burchett, Tompkins, Beaumont JJ 
17 July 2002; 23 July 2002 

Land law – order for accounts – appeal that land court lacked jurisdiction - dismissed 

The facts are stated at Fonohema v Piukala [2001] Tonga LR 286. 

The appellant appealed on the ground that the Land Court lacked jurisdiction in the case. Alternatively that the verbal agreement sued upon was void by virtue of s 6 of the Land Act; or unlawful by virtue of ss 12 and 13 of that Act. Further that the Land Court ought not to have ordered that the appellant's wife sign the surrender letter, or allowed damages in favour of the respondent in the amount of $19,000. 

Held: 

1. The Land Court had an inherent or implied incidental power to make such ancillary or auxiliary orders as were just and equitable, in order to do justice between the parties. Accordingly, an order for an account made ancillary to an order for specific performance was within the Land Court's jurisdiction, a conclusion consistent with the settled common law rule preventing unnecessary circuity and multiplicity of suits. 

2. The appeal failed in substance. The court varied the orders made in some procedural respects. Appropriate declaratory orders were made clarifying the obligations of the appellant to use his best endeavours to obtain the requisite consents with a view to satisfaction of the contractual conditions. 

3. The appeal was dismissed with costs. 

Cases considered: 
Alati v Kruger [1955] 94 CLR 216 
Brown v Heiffer [1967] 116 CLR 344 
Eastern Extension Australasia v FCT (1923) 33 CLR 426 
Fakatava v. Koloamatangi [1974-1980] Tonga LR 16 
Kaufusi v Taunaholo [1981-1988] Tonga LR 70 (PC) 
Kennedy v Vercoe [1960] 105 CLR 521 

Statute considered: 
Land Act (Cap 132) 

Counsel for appellant: Mr Tu'utafaiva 
Counsel for respondent: Mr Niu 

Judgment

INTRODUCTION 

[1] This is an appeal from a judgment of the Land Court (Ford J) ordering specific performance of an agreement to surrender a lease. In order to understand the issues that arise on the appeal, essentially questions of law (including a jurisdictional question), it will be necessary to explain first the nature of the cases sought to be made by the parties respectively in the Land Court, as follows: 

THE PLAINTIFF'S (RESPONDENT'S) CASE IN THE LAND COURT 

[2] By his statement of claim, the plaintiff (the respondent on the appeal) pleaded, relevantly, this case against the defendant (the appellant): 

• The appellant is a law practitioner and is the holder of a town allotment called 'Iteni' situated at Ha'ateiho, Tongatapu ("the allotment"). 

• On 1/8/2000, the appellant advertised in the 'Taimi 'o Tonga' newspaper which is circulated weekly throughout the Kingdom and overseas the following notice (in the Tongan language): 

"NOTICE
TOWN ALLOTMENT TO RENT, LEASE OR OWN ABSOLUTELY

I have an 'api which is situated at Ha'ateiho, its size is 1r 24p [for] a person who wants to rent, lease or own absolutely. Situated on it is a brick house with 4 bedrooms plus master room (private facilities) fully furnished with double beds in each room & etc, large lounge / sitting room fully furnished and also a conference table with 8 chairs and etc. kitchen with stove, fridge & etc, 3 toilets / bathrooms, a 3000 gallon cement water tank. You are welcome to inspect. 

... 

Make contact as soon as possible to telephone 29-098". (par.3) 

• The respondent contacted the appellant about the Ha'ateiho 'api and inspected the house and its contents in accordance with that advertisement, as he had by then decided to move back (from the United States) with his wife and children and live in Tonga. That 'api is the allotment. After negotiating, the respondent and the appellant agreed in September 2000 as follows: 

(a) that the respondent would pay $20,000 as deposit, and upon such payment, the appellant would hand over to him a letter of surrender signed by him and his heir, Kelepi Nuku Piukala, by which the appellant would surrender the allotment in order that the respondent would apply to hold it as his town allotment. 

(b) that in addition to handing over the letter of surrender the appellant would also hand over possession of the allotment and the brick house with all the furniture and contents as they had been inspected and agreed, together with the appellant's motor car registered no. C7697. 

(c) that the respondent would pay the balance of the purchase price of the house, its contents and the car, that is $36,000, over 10 years, without interest, at $300 per month; 

(d) that the appellant would pay and clear all debts for electricity, telephone and water used by him on the allotment prior to the date of possession. (par.4) 

• The appellant prepared and gave a written agreement to the respondent which the appellant assured the respondent, was confirmation of what they had agreed, as outlined in par. 4 (above). In fact, it was not in accordance with their agreement, but the respondent signed it, upon the assurance of the appellant that it was. It was dated 12 September 2000. It did not make any mention of any furniture, the car or even the house, nor of the debts for the electricity, telephone or water. The respondent did not know that, because the appellant kept all copies of the agreement, and told the respondent that he could get his copy and the letter of surrender from the ANZ Bank when the respondent deposited the $20,000 into the appellant's bank account. 

• In pursuance of the verbal agreement, the respondent paid $17,000 into the bank account on 14 September 2000 and $3,000 on 20 November 2000. 

• On or about 22 November 2000, the appellant asked the respondent to let him have some of the furniture (to give as presents to his daughter who was getting married), and that he would reduce the purchase price of the house to allow for the furniture to be taken. He also asked that he stay on in the house until the wedding. The respondent disagreed, unless the reduction was in writing and the value agreed to by him. The appellant told him he would give him the price reduction in writing. 

• On or about 29 November 2000, without having given the price reduction in writing and without the knowledge or consent of the respondent, the appellant removed most of the furniture and contents of the house.  

• On 30 November 2000, the appellant informed the respondent that he could have possession of the allotment and house, and the respondent and his family took possession of them on 1 December 2000. Upon discovering the absence of most of the furniture, the respondent asked the appellant for them and for possession of the car. The appellant told him that he would give them the price reduction for the furniture in writing, but that the motor car was not part of the sale or transaction, and that he was not giving it to him. The appellant has not given any price reduction in writing, or verbally, to the respondent for the furniture, and he has kept the car. The furniture and contents which the appellant took (as valued by the respondent and then specified) had total value of $23,000.00. 

• The respondent further discovered that the appellant had a debt of $533.00 for electricity and of $396.00 for telephone service used by him on the allotment, which the respondent has had to pay to avoid disconnection. The appellant was informed of this and promised to reimburse the respondent, but has not done so. 

• The respondent has also asked the appellant for the letter of surrender of the allotment as agreed in the agreement, but he has refused to give it until the respondent has paid him the balance of $36,000, either right away, or at $300 per month for the next 10 years. 

• The respondent obtained a copy of the agreement from the bank and was shocked to find what is written in it, the appellant having misrepresented the terms contained in the written agreement. 

• On 7 April 2001, the appellant, with several private security men, went to the allotment and began to remove the respondent's furniture from the house. The respondent was overseas at the time, and his wife was physically pushed aside and shouted at by the appellant to get out of his house. She and her children tried to stop the appellant but he pushed and shoved them aside. 

• The appellant brought, maliciously, criminal prosecutions in the Magistrates' Court against the respondent's wife for alleged assault in connection with the attempted eviction. This caused further distress and anxiety for the respondent, his wife and children. 

• On 9 May 2001, the appellant caused further distress and anxiety and great inconvenience to the respondent, his wife and children, by disconnecting the supply of electricity and telephone service to the house on the allotment. 

[3] The respondent then sought this relief against the appellant:- 

"1. An order that the appellant give to the respondent a letter of surrender, which shall be signed by the appellant, his wife and his eldest legitimate son, agreeing that the allotment with deed of grant book 140 folio 30 be surrendered in favour of the respondent; 

2. An order that, in the event that the respondent is registered as holder of the allotment, the respondent pay to the appellant a balance remaining, after deduction of the damages and costs to be awarded herein, of the sum of $36,000, at the rate of $300 per month, without interest. 

3. An order that, in the event that the appellant's wife or his eldest legitimate son, or Cabinet, does not sign or consent to the surrender, the appellant shall forthwith refund to the respondent the sum of $20,000, and, further, pay damages to the respondent in the sum of $2,500.00, with interest on both sums from the date of this order until payment of the same at 10% per annum; 

4. An order that until the sums in 3, above, and the costs of the proceeding are paid, the respondent and his wife and children are entitled to remain in occupation of the allotment …" 

THE DEFENDANT'S (APPELLANT'S) DEFENCE IN THE LAND COURT 

[4] The appellant answered the statement of claim relevantly as follows: 

• "3. Paragraph 3 of the Claim is not (sic). The house is a 4 bedroom house and one of them is the master bedroom. Furthermore, the (appellant) says that the house was advertised as 'fully furnished' for interested people to inspect but the furniture to be included in the transaction depended on the price a person is willing to pay." 

• Paragraph 4 of the Claim was "admitted", save that – 

(a) The appellant had no knowledge of the decision by the (respondent) to move back with his wife and children and live in Tonga. 

(b) The agreement reached between the appellant and the respondent was put into writing, read by them and signed by the parties on 12 September 2000 after agreeing that it was a written confirmation of their agreement. 

(c) 	"(i) The (respondent) was advised that the value of the allotment, house and all furniture and contents of the house is $100,000.00. But because the (respondent) advised the appellant that he (the respondent) only has $20,000.00 and could not afford $100,000.00 it was agreed that the (respondent) takes the allotment and house for $50,000.00 without the furniture and contents. 

(ii) The $6,000.00 in the $56,000.00 being the price set out in the agreement was to be paid by the (respondent) because the (appellant) agreed to allow the (respondent) and his family to occupy the house and allotment whilst paying off the $30,000.00 at the rate of $300.00 per month for 10 years.  

(iii) The furniture and part of the contents left by the (appellant) in the house to be used by the (respondent) were only because of love and sympathy by the (appellant) towards the (respondent) and his family in their wish to occupy the house. 

(iv) The car registration no.C7697 was never part of the agreement between the (respondent) and the (appellant). However, it was indicated by the (appellant) to the (respondent) that there may be times when the (appellant) is out of the country and the car may be left with the (respondent) until the (appellant) returns to Tonga. 

(v) In January 2001 the (respondent) asked the (appellant) about the said car and the (appellant) wrote a letter dated 12 January 2001 to the (respondent) confirming his oral advice to the (respondent) that the car is not part of their agreement. 

(vi) The matters of the electricity, telephone and water bills were understood by the (respondent) and the (appellant) (to be) that once they are received by the (respondent) he would give them to the (appellant) for payment, because the bills for the month of November 2000 were not received yet by the (appellant) when he moved from the house on 30 November 2000. These matters were not considered by the Parties to be of real concern because their main concern were the allotment and the house." 

 ... 

• In answer to para. 5 of the claim, the appellant pleaded: 

"(a) The (appellant) prepared the draft of the Agreement on his own computer. 

(b) The (appellant) then discussed it with the (respondent) who read the agreement on the computer screen in the presence of the (appellant). The (respondent) agreed with the contents of the agreement before it was printed out for both the (respondent) and the (appellant) to have another look at it. On agreeing with its contents the (respondent) signed it in the presence of the (appellant) and Siosi Piukala, who witnessed their signatures. 

 ... 
(d) The (appellant) was at no time under the impression that the (respondent) did not understand the written agreement before he signed his name to it. 

 ...  

(f) One copy of the Agreement together with the letter of surrender of the allotment was deposited into the safe custody of the ANZ Bank, because the (appellant) did not want the (respondent), who understood it as well, to lodge the letter of surrender with the Minister of Lands and have the surrender approved by Cabinet thereby leaving the (appellant) with no control over the allotment in case the (respondent), as is happening now, fails to comply with their written agreement. 

 ... 

[5] The appellant next denied, in detail, and in all essential respects, the other allegations in the Statement of Claim. 

[6] Further, or alternatively, the appellant then pleaded these two special defences: 

1. That the agreement entered into by the respondent and appellant, either written or oral, is null and void by virtue of S.6 Land Act and therefore unenforceable. 

2. That the agreement entered into by the parties, either written or oral, is contrary to S.13 Land Act and therefore unenforceable. 

[7] [By S.6, it is relevantly provided that every verbal or documentary disposition by the holder of an allotment, which "purports to effect … an out-and-out sale … is null and void."] 

[8] [By S.13 it is relevantly provided that any landholder who enters into any agreement for benefit or profit relating to the use or occupation of his holding, other than in the prescribed manner, or as approved in writing by the Minister, shall be liable to conviction etc.] 

THE PRIMARY JUDGE'S FINDINGS AND REASONS 

[9] At the trial, the 12 September 2000 written agreement was admitted into evidence. Ford J noted that it required the appellant to provide the respondent with a letter of surrender signed by his next heir; and that it further provided that the respondent pay the deposit of $20,000, and the balance of $36,000 at the rate of $300 per month over 10 years. His Honour thus found that the 12 September agreement accorded with sub-pars (a) and (c) in par 4 of the Statement of Claim, but made no reference to sub-par (b), being the house and its contents and the car, nor to sub-par (d), being the amounts outstanding for property services. 

[10] Accordingly, the primary Judge turned to the question whether the 12 September agreement evidenced the whole of the parties' contractual intentions. His Honour then found that the parties had, in fact, made an oral contract in the terms pleaded in par 4 of the Statement of Claim. In so finding, the primary Judge expressed a favourable view of the evidence of the respondent and all of his witnesses, but had a different view of the appellant's evidence. 

[11] The Judge went on to find that, although the parties had intended that their verbal agreement should be reduced to writing, when the appellant prepared a document in Tongan, the respondent (who had lived in the United States for 24 years) had difficulty understanding it. 

[12] His Honour further found, contrary to the appellant's evidence, that the appellant did not provide the respondent with a copy of the 12 September agreement; and that, since the respondent had trusted the appellant, knowing him to be a law practitioner, the respondent had believed, (contrary to the fact) that the written agreement "did no more than embody the terms of (their) verbal agreement ...", notwithstanding that the 12 September agreement "said nothing whatever" about the house or its contents, or the car, or the outstanding debts. 

[13] His Honour then held that the 12 September agreement was invalid for mistake, because it had not been shown unequivocally that the parties had assented to the same thing. Alternatively, given the relationship of trust, being a fiduciary relationship between the parties, His Honour held that the 12 September 2000 agreement was voidable by virtue of the presumption of undue influence, a presumption not rebutted here. 

[14] The primary Judge said: 

"(The appellant) abused the relationship of trust and confidence by taking advantage of the (respondent's) almost total ignorance of the land laws of Tonga to negotiate an agreement (here I am referring to both the verbal agreement and the 12 September written agreement) that from the (respondent's) perspective, based on the (appellant's) interpretation, was both unfair and oppressive." 

[15] However, his Honour noted, although the respondent had the option of avoiding the earlier verbal agreement, he had elected to seek its specific performance.  

[16] The Judge said: 

"There are obvious defects in the verbal agreement which resulted from the failure of the (appellant) to properly fulfil his fiduciary duty. No provision is made, for example, to cover the situation of the widow's constitutional entitlement to the allotment in the event of both the (appellant) and his son (the heir) dying before the agreement crystallized. No provision is made as to what might happen should Cabinet not approve the surrender or if there was a default in the payment of the monthly instalments of $300.

The (respondent), as is his right, nevertheless seeks specific performance of the verbal agreement and submits that if the agreement is frustrated, for any of the reasons I have just touched upon or any other reason beyond the control of the parties, then the court is able to remedy the matter by granting further appropriate relief." 

[17] His Honour then addressed, but rejected, the special defences (including the jurisdictional defence) pleaded in the Statement of Defence. 

[18] The Judge turned next to the respondent's claim to deduct the amounts he pleaded from the balance payable of $36,000. On this account, of the total amount claimed ($31,500.00), His Honour allowed an amount of $19,000.00, stating that the items in question (that is, the contents and the car) were "integral elements of the claim before this Court, even accepting that they are not matters which would normally be associated with a Land Court claim …" 

[19] Finding that it was the parties' intention that the monthly payments would commence as soon as the surrender letter was handed over, the Judge said: 

"The payments were not to be dependent upon the (respondent) taking title. At the same time I accept that although the (respondent) anticipated that there would be some delay before he would take title, he did not, then, realize that he would have to wait at least 12 months before that event could take place. None of that was ever explained to him by the (appellant) who was acting as his solicitor and I am satisfied that if it had been explained, together with the other contingencies I have referred to, then the (respondent) would not have agreed to start making the payments immediately. The (appellant) should not be permitted to benefit from his own breach of fiduciary duty and so for that reason I propose to grant relief in the terms sought by the (respondent). In doing so, I am mindful of the fact that the (appellant) has had the full use of the $20,000 deposit paid by the (respondent)." 

THE ORDERS MADE AT FIRST INSTANCE  

[20] His Honour accordingly made these orders: 

"1. Within 1 month of today's date the (appellant) will give to the (respondent's) solicitor a letter of surrender which shall be signed by the (appellant), his wife and his eldest son (the heir), agreeing that the allotment with deed of grant book 140 folio 30 be surrendered in favour of the (respondent). 

2. That in the event that the (respondent) is registered as holder of the allotment, he shall pay to the (appellant) the balance of $36,000, less the losses and damages allowed of $19,000, namely, the sum of $17,000, at the rate of $300 per month, without interest.  

3. In the event that, the (appellant's) wife or heir does not sign the surrender or Cabinet does not consent thereto, then leave is reserved to the (respondent) to come back to this Court for further relief including damages, loss and compensation as appropriate.  

4. Until further order of the Court, the (respondent) and his wife and children are entitled to remain in occupation of the said allotment. (In this regard, the court is mindful of the evidence that the (appellant) has had the full use of the $20,000 deposit paid by the (respondent).  

5. The (respondent) is entitled to costs, to be agreed or taxed." 

THE GROUNDS OF THE APPEAL  

[21] In the argument before us, the appellant relied upon the following as the grounds of his appeal: 

1. That the Land Court lacked jurisdiction in the case. 

2. Alternatively –  

(a) The verbal agreement sued upon was void by virtue of s6 of the Land Act; or unlawful by virtue of ss 12 & 13 of that Act. 

 [Sections 6 & 13 are mentioned above. Section 12 provides that any landholder who sells, or attempts to sell, any land out-and-out to any other person shall be liable on conviction to a term of imprisonment.] 

(b) The Land Court ought not to have – 

(i) ordered that the appellant's wife sign the surrender letter: or 

(ii) allowed damages in favour of the respondent in the amount of $19,000. 

Conclusions on the appeal 

[22] It will be convenient to consider the grounds of appeal in turn. 

Jurisdiction 

[23] Section 149(1)(b) confers upon the Land Court jurisdiction – 

"(b) to hear and determine all disputes, claims and questions of title affecting any land or any interest in land …" 

In addition, s.149(1)(e) confers jurisdiction –  

"(e) to hear and determine any question or amount of damages, loss, compensation, mesne profit, rent or claim in respect of any allotment, lease, sub-lease, permit or interest of any kind in any land." 

[24] The question thus arises of the proper characterization of the claims made by the respondent in the Land Court. This characterisation is, in turn, to be ascertained upon an analysis of the nature of the claims made by the respondent in his Statement of Claim. In our opinion, an examination of the Statement of Claim indicates that, in terms of the relief then sought, as a matter of both form and substance, the following claims were made: 

• A claim for specific performance of a contract to provide a letter of surrender. 

• As an incident of this claim, an order in the nature of an order for accounts arising out of this contract. 

• As a further incident of this claim, an order providing for restitution in the event that the requisite consents were not obtained. 

[25] In our opinion, a claim of the first kind, that is, for specific performance of a conditional contract (as this was) to surrender an allotment, is clearly within the ordinary jurisdiction of the Land Court. Such a proceeding is plainly a claim or dispute or a question of title "affecting ... any interest in land ..." for the purposes of s 149(1)(b). The dispute centres on the respective interests of the parties in relation to the allotment, albeit subject to the operation of the several conditions mentioned. 

[26] In an analogous matter, Kaufusi v Taunaholo [1981-1988] Tonga LR 70, the Privy Council dismissed an appeal from an order of the Land Court for registration consequent upon a surrender consented to by Cabinet, again a matter clearly within the Land Court's jurisdiction. 

[27] In addition to its ordinary jurisdiction the Land Court has, by necessary implication, an incidental or inherent jurisdiction, that is to say, jurisdiction to do all incidental things necessary to ensure the effective exercise of its ordinary jurisdiction.  

[28] An aspect of the Land Court's incidental or inherent jurisdiction may be seen in the provisions of s 149(1)(e) (above), conferring authority upon the Land Court to grant alternative, or consequential, relief by way of damages etc in, for instance, a claim in relation to title to an interest in land. 

[29] But, in our view, s 149(1)(e) should not be seen as an exhaustive statement of the Land Court's inherent or incidental jurisdiction. There may be other contexts in which it is necessary for the Land Court to exercise authority in order to render effective the exercise of its ordinary jurisdiction. 

[30] In our opinion, an order by way of accounts, of the kind secondly mentioned above, falls within the Court's incidental powers. This is not, of course to say that the Land Court has any free-standing authority to direct accounts, or to hear a separate and discrete claim for unliquidated damages arising out of, say, a conversion of personal property. But that is not the present case. Here, the Land Court ordered that, in the computation of the final amount to be paid as consideration for the surrender, there be deducted two amounts – the sum of $13,000 and $6,000, - representing the Court's assessment of, and allowance for, the value of two items which were part and parcel of the contract's consideration. In this sense, his Honour described these matters as "integral elements of the claim." 

[31] An order for specific performance is an equitable remedy. Another form of equitable relief is an order for accounts, either as a free standing remedy, or as auxiliary relief granted in association with another remedy. 

[32] As Fry on Specific Performance (6th Ed. at 532) notes: "The form of a judgment for specific performance varies, of course, according to the particular circumstances of the case." Fry proceeds (at 533) to give, as an illustration, the Court's practice, in an action for specific performance, of ordering that accounts be taken as between vendor and purchaser, by way of adjustment of the balance of the purchase price payable. 

[33] In our opinion, the second claim, essentially one for an adjustment by way of an account, fell within the Land Court's jurisdiction. Such a Court has an inherent or implied incidental power to make such ancillary or auxiliary orders as are just and equitable, in order to do justice between the parties (see Halsbury's Laws of England, 4th Ed., Vol. 37 par 14). Accordingly, an order for an account made ancillary to an order for specific performance is within the Land Court's jurisdiction, a conclusion consistent with the settled common law rule preventing unnecessary circuity and multiplicity of suits (see Eastern Extension Australasia v FCT (1923) 33 CLR 426). 

[34] The third (alternative) order claimed, essentially restitutionary, arises only in the event that specific performance is no longer practicable. Viewed as a consequential order in that ancillary sense, it falls within jurisdiction, for the reasons given in respect of the second claim. 

[35] Accordingly, we agree with the primary Judge's refusal to uphold the appellant's objection to the Land Court's competency. 

[36] We turn next to the other special defences. 

Section 6 Land Act

[37] As mentioned, s.6 voids an "out-and-out sale". [Emphasis added.] 

[38] In our opinion, this was not such a sale. Rather, as the primary Judge held, the transaction the subject of the parties' contract was conditional upon the observance of the requisite statutory procedures of the making of an application to the Cabinet under s54 for its consent to the appellant's surrender, with a view to the grant of the allotment to the appellant by the Minister under S19. Whilst this contractually bound both parties to take all proper steps to obtain this consent (and the consent of the appellant's heir and wife, given their respective constitutional and statutory interests) - obligations which were themselves specifically enforceable - it did not follow that a proprietary interest passed at that stage (see Brown v Heiffer [1967] 116 CLR 344 at 355). In our view, there was no sale here, let alone an "out-and-out" one. In Kaufusi v Taunaholo, above, the Privy Council said of a similar transaction [at p 72]: 

"The next ground of appeal was that the arrangement between the respondent and Feleti was null and void pursuant to S.6 of the Land Act, or unlawful in terms of Clause 104 of the Constitution. Both provisions forbid the sale of land and in the present case the respondent agreed that he had paid Feleti $600. 

In our opinion there was simply no element of sale in this transaction. Following the surrender there was no guarantee that the respondent would obtain a grant." 

Section 12 Land Act 

[39] Again, it will be recalled, the operation of this provision depends upon the existence of a "sale" of land "out-and-out". As has been said, the subject transaction cannot be so characterized. 

Section 13 Land Act 

[40] For this provision to apply, the arrangement for occupation must be "other than in the manner prescribed by this Act, or as approved in writing by the Minister". 

[41] On behalf of the appellant, reliance is placed the decision of the Land Court (Roberts CJ) in Fakatava v. Koloamatangi [1974-1980] Tonga LR 16. There, an oral agreement for the occupation of land was held to have contravened s 13. 

[42] In our opinion, for present purposes, the case may be distinguished on its facts. In the present case, the temporary occupation arrangement was no more than an incident of the surrender proposal, which itself was conditioned upon the grant of Crown consent. 

[43] Accordingly, in our view, s 13 was not infringed. 

Assessment of the figure of $19,000.00 by way of deduction from the price 

[44] Finally, for completeness, we note that the grounds of appeal included a challenge, on the facts, to his Honour's assessment of the sum of $19,000, as the amount to be deducted from the final balance payable to the appellant upon satisfaction of all conditions. This challenge was not developed before us and given its factual element, we are not persuaded that his Honour erred in exercising his wide discretion, in this kind of context, to do substantial justice between the parties (see Alati v Kruger [1955] 94 CLR 216). 

DISPOSITION OF THE APPEAL 

[45] In substance then, the appeal fails. We do, however, propose to vary the orders made by the primary Judge in a few procedural respects. In particular, we will make appropriate declaratory orders clarifying the obligations of the appellant to use his best endeavours to obtain the requisite consents with a view to satisfaction of the contractual conditions. 

[46] The orders follow the form of orders made in like cases, for instance Kennedy v Vercoe [1960] 105 CLR 521 at 530-1. Otherwise, the appeal will be dismissed, with costs, as they should follow the event. 

[47] Accordingly, we make the following orders: 

1. Except for the order as to costs, vary the orders made by the Land Court by discharging those orders, and in lieu thereof, make orders as follows: 

(a) Declare that the contract pleaded in par 4 of the Statement of Claim should be carried into execution and specifically performed. 

(b) Declare that, to this end, the appellant was, and is, bound to do whatever may be reasonably required on the part of the appellant to enable the consents of the Cabinet and the Minister and the Appellant's wife and heir to the surrender of the allotment, and its subsequent grant to the respondent; and order the appellant to do so. 

(c) Order that, upon the giving of those consents and the making of that grant, the respondent do specifically perform the said contract by paying the appellant the sum of $17,000, [being the contract figure of $36,000, less the deduction of $19,000 allowed by the Land Court] at the rate of $300 per month, free of interest. 

(d) Declare that, in the event that the said consents are not given, and the said grant not made, the contract is not specifically enforceable, and the Land Court may then give such relief to the parties as may appear just. 

2. Appeal otherwise dismissed, with costs.