1905. 177 RUMNEY v. CROAKER. Contract-Sale of incorporeal hereditament Executory contract- An executory contract, though required by law to be in writing, may be wholly rescinded by parol. THE plaintiff obtained a concession from the Crown to procure mangrove bark from a portion of the Queensland coast. On 25th November, 1903, he entered into an agreement with the defendant to sell to him one-half of the concession for £500, of which £20 was to be paid as deposit and the balance on the completion of a proper conveyance to the defendant. The agreement was in writing, but not under seal. Subsequently the plaintiff executed a deed of assurance conveying the one-half of the concession, but the defendant refused to sign this deed. This action was brought to recover £480, the balance of the purchase money. Amongst other defences the defendant alleged that the agreement had been rescinded by mutual consent. The learned Judge, who tried the case, found as a fact that an agreement to sell one-half of the concession was made, and £20 deposit paid; that the balance was not to be paid until the execution of a proper conveyance; and that the parties had by oral agreement wholly rescinded the contract prior to the execution of the deed of assurance by the plaintiff. On motion for judgment, Fewings and Watson, for the plaintiff The agreement is a complete conveyance. It cannot be rescinded by parol. The property has passed. We are suing for a debt due by the defendant. A debt can only be released in law by accord and satisfaction or by deed. The rule is the same in Equity. There is no consideration for the relinquishment of the balance. Cumber v. Wane (1). An executed contract cannot be rescinded by parol agreement. Foster v. Dawber (2). 1905. June 1, 2, 21, 22, 23, 24. Real J. (1) Lead 1732, 1 Str. 426; 2 Smith's (2) 1851, 6 Exch. Rep. 839. ing Cases 338. 178 RUMNEY V. Real J. ST. R. QD. [REAL J. The property which is the subject matter of this sale is an incorporeal hereditament which can be conveyed only by deed. Wood v. Leadbitter (1). In this case probably a letter or some means which would be recognized by the Minister for Lands would be sufficient, but at the time the contract was rescinded a proper conveyance had not been made and the contract was at that time merely executory.] It has never in recent times been decided that an agreement required by law to be in writing can be wholly rescinded by parol agreement, although it is suggested in some text books. We submit that an agreement required by law in writing should by a parity of reasoning be rescinded only by an equally formal method. As the law requires more than mere words to make the contract binding and actionable, so by inference it requires something more than mere words to nullify or discharge it. Woolcock and Macgregor, for the defendant: The contract is clearly executory, and can undoubtedly be wholly rescinded by parol agreement. It has been expressly so decided. Goman v. Salisbury (2). See also the dictum of Denman C.J. in Goss v. Lord Nugent (3). : REAL J. In my opinion, the defence is good. An executory contract may, it seems, be wholly set aside or rescinded by parol agreement. In the case of Goman v. Salisbury (4) it was expressly decided that an agreement in writing made since the Statute of Frauds and Perjuries, might be discharged by parol, and the bill which was brought to have the agreement executed in specie was dismissed. Denman C.J., in Goss v. Lord Nugent (5). inclined to the same opinion. He said, "And as there is no clause in the Act which requires the dissolution of such contracts to be in writing, it should rather seem that a written contract concerning the sale of lands may still be waived and abandoned by a new agreement not in writing, and so as to prevent either party from recovering on the contract which was in writing." In Leake on Contracts, 4th Ed., p. 567, the opinion is expressed that (1) 1845, 13 M. & W. 838. (2) 1684, 1 Vern. 240. (3) 1833, 5 B. & Ad., 58. (4) 1684, 1 Vern. 240. (5) 1833, 5 B. & Ad., 58, at pp. 65 and 66. 1905. 66 although there seems to be no recent case wherein the point has Judgment accordingly. Solicitor for the plaintiff W. C. Harding. Solicitors for the defendant: Nicol Robinson & Fox. RUMNEY . Real J. 179 [IN THE CENTRAL COURT.} THE KING v. THE LICENSING AUTHORITY OF Licensing law Provisional Certificate Application for Procedure on hearing of-Refusal-Reasons Jurisdiction— The Licensing Act of 1885 (49 Vic., No. 18), ss. 33, 48, Second schedule. F. applied to the Licensing Authority at Rockhampton for a provisional license in respect of premises to be erected at Thompson's Point. At the same sitting, J. also applied for a provisional license in respect of premises to be erected in the same locality. To both applications the Inspector objected that the reasonable require 1905. July 24. Power J. ments of the neighbourhood did not justify the granting of a license. After evidence 1506 StRQd160, had been called on F.'s application, decision was reserved until J.'s application had been heard. The Bench granted a provisional license to J. on the ground that one license would meet the requirements of the place. Held, that no sufficient reason had been stated for the refusal of F.'s application and that as it was doubtful whether the Licensing Justices had acted judicially, a mandamus to the Authority to hear and determine F.'s application should be granted. The provisions of s. 48 of The Licensing Act of 1885 apply to applications for provisional certificates under s. 33 of that Act. ORDER NISI FOR A MANDAMUS. The prosecutor, John Fitzgerald, applied, on 5th July, 1905, by application duly advertised and delivered to the Licensing Authority for the Licensing District of Rockhampton, for a 223 1926 STR93200 180 LICENSING ST. R. QD. THE KING . THE provisional certificate for premises to be erected by him at Thompson's Point. The Licensing Inspector objected, on the ground that the reasonable requirements of the neighbourhood did not justify the granting of a license, and evidence was given in support of this objection. AUTHORITY OF The justices, having heard the evidence on this application. decided that before giving their decision they would proceed to hear the evidence on another application, which was set down for hearing at the same meeting, and by which J. H. Jarrott applied for a provisional certificate for premises to be erected in the same locality. The same objection was taken to Jarrott's application as to Fitzgerald's, and similar evidence was given thereon. After hearing Jarrott's application, the Licensing Authority retired, and, on resuming, the Chairman said, "The Bench have considered the matter. It appears there are three questions. The first is the granting of no license; the second is the granting of one license; the third is the granting of two licenses. By a majority we have decided that we should grant only one license, and also by a majority we decided to grant the license of Jarrott. The ground for granting only one license is that we think that one license will meet the requirements of the place." An order nisi, applied for on behalf of Fitzgerald, was granted by Power J., calling upon the Licensing Authority to show cause why a writ of mandamus should not issue directing them to grant to the prosecutor a provisional certificate under s. 33 of The Licensing Act of 1885, or why in the alternative they should not enter an adjournment, and proceed to hear and determine the application according to law, on the grounds: (i.) that it was not shown to the Licensing Authority that the prosecutor was disentitled to a provisional certificate; (ii.) that they did not state the grounds of their refusal to grant a provisional certificate nor cause the same to be entered on the records of the Court; (iii.) that they were influenced in coming to a decision by evidence other than that given on the hearing; (iv.) that the only objection made against the application was that the reasonable requirements of residents in and travellers through the neighbourhood did not justify the granting of the certificate, which objection was not upheld; and (v.) that they did not proceed on the hearing of the application in a judicial manner. 1905. Ryan moved the order absolute. Walsh (Solicitor) showed cause. The rule should be discharged. The Licensing Justices had a discretion to grant or refuse the certificates. The Licensing Act of 1885, s. 33, subsec. 4, Devine v. The Justices of Brisbane (1), Atkinson v. Pinnock (2). And that discretion was exercised judicially. No appeal lies where the Justices exercise their discretion reasonably. The words of s. 33, subsec. 4, are quite plain. They are intended to confer on the Justices a discretion. In Devine v. The Justices of Brisbane (1), per Cockle C.J., “Under the circumstances I think we have no power whatever to issue a rule commanding the Justices to do that which, according to law, it was entirely discretionary for them to do." And per Lutwyche J., "We are not at liberty to inquire into that which was within the discretionary power they possessed. But if they came to the conclusion that it was desirable to limit for the future the number of public houses to be opened, I must say I think it was a very wise discretion." And per Lilley J., "Although it is imperative that they should hear the application and objections thereto in open Court, the materials upon which they may found their judgment seems to be left to their discretion it may well be that the Legislature intended to leave to them as a question of judgment whether any locality was sufficiently supplied or overstocked with houses of entertainment, or places where travellers can be received." The Licensing Authority came to the conclusion that they would grant only one license, and decided to grant a license to Jarrott; they exercised their discretion as they had a right to do. The question of personal fitness is not a matter to be considered on the application for a provisional certificate. There is a distinction between the granting of a license and the granting of a provisional certificate, and s. 48 has no application to the latter, in which the Chairman states the decision, and need give no reasons. Schedule II., Regulation 8. . Ryan, in reply: The Licensing Authority should have heard the cases, and granted that of the first applicant, unless the (1) 1876, 1 Q.L. R. 43. (2) 1886, 2 Q.L.J. 138. 181 THE KING V. THE |