Acorn Cove Pty Ltd v Ciallella

[2006] NSWSC 435

CITATION:	Acorn Cove Pty Ltd v Ciallella [2006] NSWSC 435
HEARING DATE(S):	26/04/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	04/26/2006
DECISION:	Notice of motion dismissed with costs.
CATCHWORDS:	CONVEYANCING - Land Titles under the Torrens System - Caveats against dealings - Application for extension of caveat - Irrevocable undertaking to sell property signed by landowner - Whether offer or acceptance - Whether the Convayancing Act 1919, s 54A(1) requiring note or memorandum in writing signed by person to be charged was satisfied
LEGISLATION CITED:	Conveyancing Act 1919
CASES CITED:	John Wakim & Sons Pty Ltd v BBA Industries Pty Limited (2000) NSW ConvR 55-946
PARTIES:	Acorn Cove Pty Ltd - Plaintiff Natalino Ciallella - Defendant
FILE NUMBER(S):	SC 2445/06
COUNSEL:	Mr G Sirtes - Plaintiff Mr C Freeman - Defendant
SOLICITORS:	Graeme McKimm Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 26 APRIL 2006

2445/06 ACORN COVE PTY LTD v NATALINO CIALLELIA

EX TEMPORE JUDGMENT

1 On 17 April 2006 Peter Lazaris, an officer of Acorn Cove Pty Ltd, the plaintiff, spoke with Natalino Ciallella, the defendant, with respect to the purchase of his property. Mr Cillella said he wanted $1.1 million; Mr Lazaris said that was out of the question. Mr Cillella said he would make it $1.075 million. Mr Lazaris said that was still too dear. Mr Ciallella then said his final price was $1.05 million, not one dollar less. Mr Lazaris said: “Okay, I will find out if my directors have any interest.”

2 Mr Lazaris reported to his directors and was asked by them to have Mr Ciallella sign an undertaking that he was serious about selling the property at that price. Mr Lazaris then had a further conversation with Mr Ciallella in which he said the directors wanted him to sign a paper nominating his price and the particulars of his solicitor, if he were serious to sell. Mr Ciallella said: “Okay but I don’t want to wait three weeks I will cross it out”. That was a reference to a portion of the document that had been prepared by Acorn Cove. It was in these terms:

“To Acorn Cove Pty Ltd
377 Riley Street, Surry Hills 2010
I, [there was a space in which Mr Ciallella filled out his name] hereby give an irrevocable undertaking for a period of three weeks [Mr Ciallella struck out the words “three weeks”] that I will sell the property at 373 Riley St, Surry Hills 2010. For the sum of [there was a space in which Mr Ciallella filled in the figures $1,050,000].”

The document continued: “The particulars of my solicitor is”. Mr Ciallella filled in the name and address of his solicitors. The document was then signed by Mr Ciallella and the witness to his signature. The date “17 FEB 2006” appeared below the signatures.

3 A caveat was lodged by Acorn Cove, the interest claimed being an equitable interest pursuant to a contract. The contract was identified as an offer and acceptance to sell and purchase dated 17 February 2006. The facts stated were:

“The parties concluded an offer and acceptance in writing to sell and to buy the said lands for the sum of $1,050,000 on the 17th February 2006.”

4 On 17 February 2006 the solicitors for Acorn Cove wrote to the solicitors for Mr Ciallella in these terms:

“I represent Acorn Pty Ltd acn 010 449 224 a company which has expressed interest in acquiring your client’s above mentioned property.
I understand preliminary negotiations have occurred and this is to request your advise ( sic) as to whether or not you have received instructions in the matter from your client. I also understand that no agent is involved.”

5 Ultimately there was a response to that letter from Mr Ciallella’s solicitors by facsimile on 21 February 2006 advising that Mr Ciallella had instructed them that the property was not on the market for sale and their client was not currently considering any offers made.

6 The caveat was lodged on 27 February 2006.

7 The application before the court is for an order that the operation of the caveat be extended until further order of the court and orders associated therewith. Mr Sirtes, who appears for Acorn Cove, submits that the facts that I have set forth should be characterised as an offer made by Acorn Cove to Mr Ciallella, accepted by Mr Ciallella by his signature to the document given to him by Acorn Cove and, in consequence, the document constitutes a memorandum of an agreement under s 54A(1) of the Conveyancing Act 1919 which provides that:

“ No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged .”

8 Mr Freeman, who appears for Mr Ciallella, submits that the proper construction is that the document signed by his client constituted an offer and there is no evidence of acceptance and, in consequence, the offer does not satisfy the terms of the Conveyancing Act 1919, s 54A(1). He cites as authority for that proposition, if authority were needed, John Wakim & Sons Pty Ltd v BBA Industries Pty Limited (2000) NSW ConvR 55-946 at [14].

9 In my view, the construction put forward by Mr Freeman is to be preferred. It does seem to me that the document is couched in terms of an offer rather than the acceptance of an offer. The notion that there was a concluded agreement evidenced by the document stands contrary to the terms of the solicitor’s letter of the same day stating that Acorn Cove had expressed an interest in acquiring the property of Mr Ciallella. Had the solicitor understood that a concluded contract had been reached, the terminology of the letter would, in my view, have been different.

10 I had some difficulty with the crossing out of the words “three weeks” in the document of 17 February 2006, but understand, from the conversation that took place, that the offer would be one that required immediate acceptance.

11 In the end that issue is beside the point. Unless there is writing that satisfies the Conveyancing Act 1919, s 54A(1), there is, in my view, no arguable case that would justify an extension of the caveat.

12 In consequence, I dismiss the notice of motion and I order Acorn Cove to pay Mr Ciallella’s costs. I stand the matter over before the Registrar on Friday 28 April 2006.

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