Mills v Stokman
116 CLR 61(Decision by: McTiernan J)
Between: Daphne May Mills
And: Martin Cornelis Stokman
Judges:
Barwick CJ
McTiernan JKitto J
Taylor J
Menzies J
Subject References:
Real Property
Profits a prendre
Whether sale of goods or grant of interest in land
Assignment
Whether authority to enter enforceable against new purchaser
Legislative References:
Sale of Goods Act 1923 (NSW) - s 5; s 22; s 23
Real Property Act 1900 (NSW) - s 42
Judgment date: 19 May 1967
SYDNEY
Decision by:
McTiernan J
I am of the opinion that the transaction between the first appellant's predecessors in title and the second respondent was not a contract for the sale of goods. The slate the subject matter of the transaction was, on the evidence, part of the land where it was deposited. The effect of the evidence is that by the transaction the second respondent bought a mass of pieces of the earth's crust, mined from the quarry in the vicinity, which the quarrying company returned to the earth. As the vendors entered into the transaction for value, it created a valid equitable profit a prendre . The next transaction between the second respondent and the first respondent was not an assignment of the whole of his interest by the former to the latter.
This transaction purported to be a sale of what then remained of the mass of pieces of slate but the second respondent did not assign to the first respondent the licence to go on the land to win the slate and take it away. It would seem that an object of the agreement which the first respondent made with the first appellant, who then owned the land where the slate was deposited, was that the first respondent should obtain from the first appellant an authority to go on the land for the above-mentioned purpose. This agreement, if enforceable in a court of equity, is effective to give such authority. However, counsel for the respondents declined in argument to rely upon the agreement except as evidence that the first appellant knew before she paid for the land that the first respondent had purchased the heap of slate from the second respondent. Counsel also relied for this purpose on evidence showing that the second appellant in the course of his authority as the first appellant's agent obtained knowledge of the first respondent's interest in the heap of slate.
The reason why counsel for the respondents declines to rely upon the agreement to support the first respondent's claim that he has authority to go on to the land and take away slate from the heap is that the appellants' counsel desires to contest the issue whether the agreement is specifically enforceable and that he had no opportunity of doing so at the trial because the respondents did not plead the agreement, nor was the issue contested whether the agreement supported the first respondent's claim that he had lawful authority to go on the land to win and carry away any slate from the heap. I think that it would be right to allow the application of the appellants' counsel for a direction that a trial of the issue be had and to make an order allowing this appeal. Consequently I would make an order setting aside the order of the learned trial judge and that both the appellants and the respondents should have leave to raise the relevant issues in relation to the agreement of 23rd January 1961. Further, that the respondents should pay the appellants' costs of the appeal to the Court of Appeal and to this Court and the costs of the suit should abide the order of the judge who disposes of the suit.