Baloglow v Konstantinidis - [2001] NSWCA 451

CITATION: Baloglow v Konstanidis & Ors [2001] NSWCA 451

FILE NUMBER(S): CA 40092/01

HEARING DATE(S): 17 July 2001

JUDGMENT DATE:
6 December 2001

PARTIES :

Theo Baloglow v Simon Konstantinidis; Larripalm Pty Ltd (Receiver & Manager Appointed); Carlisle Developments Pty Ltd (Receiver & Manager Appointed); Ricvale Holdings Pty Ltd (Receiver & Manager Appointed; Balkon Pty Ltd (Receiver & Manager Appointed)

JUDGMENT OF: Mason P at 1; Priestley JA at 4; Giles JA at 129

LOWER COURT JURISDICTION : Supreme Court - Equity Division

LOWER COURT
FILE NUMBER(S) : ED 4656/99

LOWER COURT
JUDICIAL OFFICER : Bergin J

COUNSEL: Appellant - F.M. Douglas QC / T.G.R. Parker
Respondent (1) - B. Oslington QC / G. Segal

SOLICITORS: Appellant - Gordon & Johnstone
Respondent (1) - Charles G. Roth
Respondents (2, 3, 4, 5) - Carneys

CATCHWORDS: Specific performance - partnership - winding up

LEGISLATION CITED: Conveyancing Act 1919

CASES CITED:
ABC v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540
Abjornsen v Urban Newspapers Ltd (1989) WAR 191
Adamson v Hayes (1973) 130 CLR 236
Brown v Heffer (1996) 116 CLR 344
Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Commissioner of Taxes (Queensland) v Camphin (1937) 57 CLR 127
Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 97578
Grey v Inland Revenue Commissioners (1960) AC 1
Hagan v Waterhouse (1991) 34 NSWLR 308
Hewitt v Court (1983) 149 CLR 639
Leeman v Stocks [1951] 1 Ch 941
Masters v Cameron (1954) 91 CLR 343
Monte v Buongiorno (1978) WAR 49
Neville v Wilson [1997] Ch 144
Oughtred v Inland Revenue Commissioners [1960] AC 206
Parker v Manessis (1974) WAR 54
Perri v Coolangata Investments Pty Ltd (1982) 149 CLR 537
Pirie v Saunders (1960) 104 CLR 149
Ratto v Trifid Pty Ltd (1985) 56 LGRA 22
Redden v Wilks (1979) WAR 161
Secretary, Department of Social Security v James (1990) 85 ALR 615
Stern v McArthur (1988) 165 CLR 489
Tonitto v Bassal (1992) 28 NSWLR 564
Trifid Pty Ltd v Ratto (1985) WAR 19
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429
York Air Conditioning and Refrigeration (A'Asia) Pty Ltd v The Commonwealth (1949) 80 CLR 11

DECISION: Appeal dismissed with costs.

CA 40092/01
ED 4656/99

MASON P
PRIESTLEY JA
GILES JA

Monday, 6 December 2001

BALOGLOW v KONSTANTINIDIS & ORS

PROCEEDINGS FOR SPECIFIC PERFORMANCE - partnership - by consent of K and B, partners no longer able to work together, court makes orders winding partnership up and appointing receiver - K and B wish to terminate receivership and to see if they can agree on a figure for which B will sell his partnership interests to K - meeting between solicitors for K and B at which proposals for such a sale discussed and allegedly agreed on - K then claims that an enforceable agreement was made at the meeting by which K promised to pay B $1.05 million in return for the transfer to K of specified partnership assets and removal of the receiver –B disputes making of agreement – K brings specific performance proceedings – in defence B denies that any concluded enforceable agreement was made and alternatively relies on sections 23C and 54A of the Conveyancing Act – trial judge orders specific performance – on appeal, all members of court agree s 54A complied with – Priestley JA and Giles JA for different reasons hold s 23C not applicable to the agreement – Mason P agrees with both – appeal dismissed.

ORDERS

Appeal dismissed with costs.

CA 40092/01
ED 4656/99

MASON P
PRIESTLEY JA
GILES JA

Monday, 6 December 2001

BALOGLOW v KONSTANTINIDIS & ORS

Judgment

1 MASON P: I have had the advantage of reading the judgments of Priestley JA and Giles JA.

2 A concluded agreement was formed at the meeting between the solicitors, for the reasons given by my brethren.

3 The agreement was not rendered unenforceable by ss23C or 54A of the Conveyancing Act 1919. As to s23C I agree with Giles JA’s reasons why the section was not engaged. Priestley JA offers an alternative path which proceeds from an assumption challenged by Giles JA but arrives at the same conclusion based on s23C(2). If one makes that assumption I also agree with Priestley JA.

Introduction

5 One attempt to agree on how this should be done ended in ill feeling.

6 A further attempt was made at a meeting on 28 July 1999 (which throughout these reasons I will simply call the meeting) between Mr Roth, a solicitor and Mr Pollard an accountant who were representing Mr Konstantinidis, and Mr Xenos a solicitor representing Mr Baloglow. Mr Konstantinidis later claimed and Mr Baloglow denied that an enforceable agreement was made at the meeting.

7 The issue led to a four-day trial during December 2000 before Bergin J. On 21 December 2000 she held that at the meeting an enforceable agreement had been made and ordered specific performance of it.

8 Mr Baloglow appealed.

9 In his written submissions to this court Mr Baloglow contended that each of the four defences he had raised at trial should have been upheld. These were (a) that no immediately binding contract creating legal relations had been made at the meeting, (b) persons named as parties had not been party to the meeting, (c) the alleged agreement was incomplete and too uncertain to be a legally binding contract, and (d) the agreement was unenforceable because of sections 23C and 54A of the Conveyancing Act (which was called in argument the Statute of Frauds point).

Facts found at trial and their background

10 Events leading to meeting of 28 July 1999. In her reasons for decision Bergin J summarised the history of the case and then carefully examined the evidence of what had happened at the meeting. She made a number of primary factual findings which became the basis of her legal conclusions. On the hearing of the appeal, counsel for Mr Baloglow accepted that these primary factual findings were of the kind they could not usefully challenge.

11 The single issue in the case is whether what was done at the meeting resulted in an enforceable agreement between Mr Konstantinidis and Mr Baloglow. The decision of that single issue depends entirely on what happened at the meeting (although the determination of what happened at the meeting may be assisted by later events). However, to understand what those present at the meeting were talking about, some knowledge of how matters stood when the meeting began is necessary.

12 Mr Konstantinidis was a solicitor. Late in 1995 Mr Baloglow brought proceedings in the Supreme Court as plaintiff against three parties referred to as the Kalls. Mr Konstantinidis acted as solicitor for Mr Baloglow. The proceedings were settled in December 1995. Pursuant to the settlement, money was paid to Mr Konstantinidis as Mr Baloglow's solicitor. Some of this money was paid to Mr Baloglow by Mr Konstantinidis.

13 It was agreed before Bergin J that in the course of their dealings four companies were used as partnership companies. Their names, in short form, were Larripalm, Carlisle, Ricvale and Balkon. Mr Konstantinidis and Mr Baloglow were the directors of each of these companies.

14 The shareholders in Larripalm and Ricvale were Mr Konstantinidis and Mr Baloglow.

15 The shareholders in Balkon were Mr and Mrs Konstantinidis and Mr and Mrs Baloglow and four of their children, Steven, Christopher, Lynette and Peter (Blue AB 7, 22).

16 The shareholders in Carlisle were Mr and Mrs Konstantinidis and Mr and Mrs Baloglow.

17 It was also agreed that five properties were, and two had been partnership properties. Larripalm owned one, 342 A Marrickville Road Marrickville; Ricvale owned 54 Whistler Street Manly; and Carlisle owned 65-67 Carlisle Street Leichhardt. The registered proprietors of another, 58 Whistler Street Manly, were Mr Baloglow and three of his children, Steven, Christopher and Lynette (Blue AB 8, 35). The registered proprietor of another, 4 Denison Street Manly, was Mr Konstantinidis. Balkon had owned another, 11-15 Davidson Street, Chullora and the registered proprietor of another, 200 Liverpool Road, Enfield, had been Mr Baloglow.

18 In 1998 Mr Baloglow brought an action in the District Court against Mr Konstantinidis in which he claimed that Mr Konstantinidis had not fully accounted to him in respect of the settlement monies from the case against the Kalls. In January 1999, Mr Konstantinidis filed a defence in which, amongst other things, he asserted that the monies claimed by Mr Baloglow had, by agreement, been appropriated to various partnership purposes. This action was pending on 28 July 1999.

19 It seems that it was at about the time Mr Baloglow began his action against Mr Konstantinidis that he also lodged a complaint about Mr Konstantinidis with the Law Society.

20 On 2 June 1999, Mr Konstantinidis served a notice of dissolution of partnership upon Mr Baloglow (Blue AB 2, 56). On the same day each partner commenced proceedings against the other in the Equity Division for the winding-up of the partnership and the appointment of a receiver. This led to court orders to that effect being made by consent on 4 June 1999. Mr G. McDonald was appointed Receiver and Manager of the assets of the partnership.

21 Before 28 July 1999, 11-15 Davidson Street Chullora and 200 Liverpool Road, Enfield had been sold, and the proceeds distributed equally between Mr Baloglow and Mr Konstantinidis.

22 A few days after the making of the consent orders of 4 June 1999 Mr Baloglow retained Mr Xenos as his solicitor. In mid July Mr Xenos wrote to Mr Roth suggesting a meeting, at which the parties should be present, in order to attempt to settle the matter. Mr Roth replied, by letter dated 14 July 1999, saying that the time for face to face negotiations had passed and his client did not wish to waste further time in settlement discussions. He added however that his client was prepared to consider a “take it or leave it” offer from Mr Baloglow

“to sell his interest and those of his family in the ‘Partnership’ assets to our client provided it is subject to the costs of the Receiver … being shared equally”.

23 Mr Roth further said that Mr Konstantinidis was

“prepared to agree to the present Receiver conducting an inquiry as to the balance of account between our respective clients arising from the ‘Partnership’ including your client’s allegation that he is owed $200,000 with an appropriate adjustment being made at the conclusion of the inquiry by the party in debit and those costs being shared equally.

Please advise the amount your client would be prepared to accept bearing in mind our client is not prepared to enter into any negotiations.”

24 Subsequent to this letter and some telephone conversations between Mr Roth and Mr Xenos, arrangements were made for the meeting in which Mr Roth, Mr Pollard and Mr Xenos took part and at which, Mr Konstantinidis claimed, a binding agreement was made for the termination of the partnership.

25 Evidence of what happened at the meeting was given by Mr Roth, Mr Pollard and Mr Xenos. The evidence of Mr Xenos differed from that of Mr Roth and Mr Pollard in many respects. Bergin J. set out the material parts of the evidence in her reasons. She dealt with the competing arguments of counsel about whose evidence she should accept. Her conclusion was that Mr Xenos had little recollection of the actual words used at the meeting and that for that and other reasons his evidence was unreliable. She said that she preferred the evidence of Mr Roth in every respect and that the conversations that occurred on 28 July 1999 were as deposed to by Mr Roth in his affidavits and his oral evidence. The meeting took place between about 9.30 and 11 am.

26 Bergin J’s findings of the facts of the meeting. The following extracts from Bergin J's reasons contain the evidence that she accepted. (Since she did not accept Mr Xenos’s evidence, I omit those parts of it which she reproduced .)

Mr Roth gave evidence that at the meeting Mr Xenos said:

I have instructions to submit the following offer. Based on your letter and our telephone conversation. Your client to pay the sum of $1,200,000 in return for the transfer to him of all the partnership assets other than in relation to Larripalm Pty Ltd as contracts have been exchanged in relation to the Marrickville property. One half of the net proceeds of sale can then be distributed to Mr Konstantinidis and Mr Baloglow. In addition Mr Baloglow will withdraw his complaint to the Law Society and discontinue the District Court and Supreme Court proceedings and the Receivership will be terminated. I am aware of the proceedings commenced by Mr Darin as liquidator against Mr Konstantinidis and Mr Baloglow but I do not have any instructions in relation to those proceedings and indeed I would have difficulty as I had an involvement. The subject of those proceedings cannot form part of these settlement discussions.

Mr Pollard gave evidence that at the commencement of the meeting Mr Xenos said words which included the following:

I assure you I would not be wasting my time coming here if I did not have the authority to reach a settlement and I have made this clear to my client. I told him that if he did not give me the authority and follow my advice I would not act for him.

I am instructed that my client will settle all matters by payment to him of $ (he did not remember the amount) and all properties would be transferred to your client except for Marrickville which is the subject to a contract for sale. The proceeds of sale of Marrickville will be shared equally. ”

27 Bergin J next recorded that Mr Pollard telephoned Mr Konstantinidis; she then set out Mr Roth’s evidence of the following conversation:

Roth: We are instructed that the offer is acceptable provided that Mr Konstantinidis takes over Mr Baloglow’s loan accounts with the companies other than that with Larripalm Pty Ltd.

Xenos: I need to get instructions will you excuse me for a short time.

Mr Roth’s evidence is that a short time later Mr Xenos then said:

Xenos: I must apologise. I misunderstood my instructions. I have made an error in that I have not taken into account a debt of $600,000 due to Carlisle Developments Pty Ltd by Larripalm Pty Ltd. Since the amount would be paid to a company in which Mr Konstantinidis would become the sole beneficial shareholder he would receive a benefit of the whole of the amount and therefore the offer should be adjusted accordingly and the sum of $1,500,000 should be paid by Mr Konstantinidis and not $1,200,000 as I communicated earlier.

Roth: We will need to get instructions and respond to you shortly.

Mr Pollard then telephoned Mr Konstantinidis and thereafter had a conversation with Mr Xenos. He did not recall the detail of those discussions at the time he swore his affidavit or at the time that he gave evidence. However, Mr Roth recalled the conversation between Mr Pollard and Mr Xenos and gave evidence that words to the following effect were used:

Pollard: Mr Konstantinidis is prepared to compromise on the amount to the extent of one half the additional amount you have requested as an offer had been made and accepted. The additional amount agreed being $150,000. The amount to be paid by Mr Konstantinidis could be decreased by $150,000 to $1,050,000 and the amount of $600,000 due to Carlisle Developments Pty Ltd by Larripalm Pty Ltd would be assigned to Mr Konstantinidis and Mr Baloglow as to one half each or alternatively the payment by Mr Konstantinidis would remain at $1,200,000 and Mr Baloglow could receive by way of assignment from Carlisle Developments Pty Ltd of $150,000 of the debt due to it by Larripalm Pty Ltd.

Xenos: I need to get instructions would you excuse me for a short time. ”

28 Mr Xenos made a telephone call after which Bergin J said that Mr Roth's evidence was that Mr Xenos said:

“ Xenos: The offer whereby the amount to be paid by Mr Konstantinidis is decreased by $150,000 to $1,050,000 and the amount of $600,000 due to Carlisle Developments Pty Ltd by Larripalm Pty Ltd would be assigned to Mr Konstantinidis and Mr Baloglow as to one half each is accepted. ”

29 A little later, according to Bergin J's findings, Mr Roth informed Mr Xenos that he would write up the agreement reached and that Mr Xenos could check each page “as I go”, to which Mr Xenos replied “yes that’s a suitable course”; Mr Roth then wrote out a document; Bergin J’s account continued with the conversation that then took place:

Roth: Before you go can you just check to make sure that nothing has been omitted.

Xenos: Yes I will do that.

Mr Roth claims that Mr Xenos then checked the whole agreement and after having checked it he said:

Xenos: That seems to cover it all. Its a sensible conclusion.

Roth: I will make a photocopy for you to take with you and I will have the written agreement typed up in a more comprehensive form and will fax it to you as I have written it in an abbreviated form.

Xenos: Yes that’s a good idea thank you.

30 Mr Xenos took away with him a number of sheets of paper on which Mr Roth's handwriting appeared. Six of these sheets, numbered 1 to 6, set out the terms of the agreement which Bergin J. eventually found was the contractual agreement binding the parties. The six numbered sheets read as follows:

TB transfer to SK or his nominee:-

1. All S/H in:- (a) Carlisle Developments

(b) Balkon

(c) Ricvale Holdings

2. All his loan A/cs in

(a )Carlisle Developments

(b) Balkon

(c) Ricvale Holdings

3. All his interest in:-

(a) 58 Whistler Street

(b) 4 Denison Street

SB, CB and LB transfer all their interest in - 58 Whistler St to SK or his nominee.

SK pay or cause to be paid to TB on or before the sum of $1,050,000.

Other than is provided herein each party releases the other from any claim, demand, action etc which each party had or may have had against the other EXCEPT FOR CHRIS DARIN as ---- ... and SK and TB as def.

TB and SK join in and do all such things as may be necessary to effect the termination of the Receiver’s appointment.

Each party shall pay one half of the Receiver’s costs and disb up to the date of the termination of the appointment.

Each party shall do all such things as are necessary to effect the sale of 342A Mville Road by Larripalm P/L as soon as is reasonably practicable.

The respective solicitors for each party shall jointly act for Larripalm Pty Ltd in relation to sale of M’Ville.

Each party shall be responsible for the costs of the respective solicitors in acting on the sale of Marrickville.

Each party shall be responsible for the costs of their respective solicitors in relation to the removal of the Receiver.

Each party shall nominate an accountant for the purpose of the nominated accountants acting jointly in the preparation of income tax returns up to an including 30 June 1999 for:

Carlisle Developments

Balkon

Larripalm

Ricvale and

the partnership of the parties

Each party shall pay and be responsible for the fees and charges of the accountant nominated by them respectively.

* Loan $600,000 from Carlisle to Larripalm

The parties shall do all such things as are necessary for Larripalm to retain the net proceeds of sale to pay from the following in the same order of priority:

(a) All income tax liabilities in relation to:

(i) Carlisle Development

(ii) Balkon

(iii) Ricvale

(iv) Larripalm

for all years up to and including the financial year ended 30/6/99

(b) all expenses of the companies referred to in (a) incurred to the date of completion of the matters referred to herein.

(c) one half to each TB and SK

* The District Court proceedings and the Supreme Court proceedings between the parties shall be discontinued by consent with each party to pay its own costs.

* TB shall irrevocably, unconditionally and unreservedly withdraw the complaint to the Law Society in relation to the matters the subject of the DC and SC proceedings.

* Carlisle Development shall assign all its interest in a loan of $600,000 made by Carlisle to Larripalm to TB in the sum of $300,000 and SK in the sum of 300,000.

31 Another sheet handwritten by Mr Roth at the meeting (or a copy of it) found its way into Mr Xenos’s file in circumstances never cleared up at the trial. On it the following appears:

“* Interest up to date

Rents 50-50

* Bank a/c equally

* Receiver be checked +”

32 Observations on position immediately after meeting. On the facts as found by Bergin J it is clear that at the end of the meeting, those who took part in it were in accord, and believed the two clients were in accord, about the way in which the partnership affairs would be wound up. I use the word “accord” to signify agreement without at the same time implying either that it was or was not a legally enforceable agreement. Which category it fell into subsequently became the issue for determination first by Bergin J and now by this court. Basing myself on Bergin J’s findings of what happened at the meeting, my assessment is that during the meeting neither Mr Roth nor Mr Xenos had turned his mind directly to the question whether the accord they were in the process of reaching would be legally enforceable without more being agreed. My assessment is that when the meeting ended all concerned were expecting that the accord would be carried out and that anything necessary to enable it to be carried out which had not been specifically mentioned at the meeting could be included in a more comprehensive document than the one that had been written out by Mr Roth. So long as both principals continued with their intent of carrying out the accord, it did not matter whether what Mr Roth had written down comprised an enforceable contract or not, nor, while their intent continued, was there any particular need to consider its enforceability; they would carry out the accord, doing anything necessary to put it into legal effect.

33 Correspondence during the afternoon of 28 July 1999 following the meeting. At 2.10 pm on the day of the meeting Mr Roth faxed a letter to Mr Xenos (Blue AB 177) which said:

“We refer to our meeting today in the presence of Warwick Pollard and

enclose

copy of the draft Terms of Agreement which were reached at the meeting and in respect of which you were provided with a photocopy of a handwritten draft. Please let us have your urgent comments so that we may attend to the preparation of a draft deed for your approval.” (emphasis in original)

34 The enclosure was a typed version of the handwritten document already set out with the expansion of the initials into full names, with some slight rearrangement not affecting substance, and with two additional paragraphs:

“ P The parties shall be entitled to receive in equal shares all rents received by them on the partnership account and by the companies referred to herein to the date of completion of the agreement.

Q The parties are to pay in equal shares all interest outstanding to the date of completion of this agreement to all mortgagees in relation to the partnership, debts and the debts of the companies referred to herein.”

35 To me, the letter is just as consistent with Mr Roth not having turned his mind at the time to the question of enforceability as with his having done so. As I see it, everybody was at that point operating on the basis that the meeting in the morning had resulted in the settlement of an acrimonious dispute and that everybody would be pressing on to bring the matter to finality, which would require some kind of settling day when the arrangements which had been proposed for the passing of property and the settling of debts would be completed. As I mentioned earlier, while the parties were still of that mind there was no occasion to give any particular attention to the enforceability of what had been agreed at the meeting. When Mr Roth wanted Mr Xenos’s urgent comments so “we may attend to the preparation of a draft deed for your approval”, what he said involved ambiguity which at that point there was no need to resolve. The ambiguity lay in the possibility that the words meant there would be no final binding agreement until the draft deed had been approved or that the draft deed would only require approval that it accurately embodied in fuller form the enforceable agreement that had already been made in the morning. Another possibility is that, since the additional paragraphs P and Q had not, on anybody’s version of events, been agreed in the morning, the full meaning of Mr Roth’s statement was that there was an existing enforceable agreement (set out in the six numbered sheets) that two further terms were proposed to be added to it which could not be included without the approval of Mr Baloglow and that if they were not to be approved by Mr Baloglow then the agreement actually reached at the meeting would be embodied in a fuller form in the draft deed without the inclusion of pars P and Q.

36 On the same afternoon, at about 2.45 Mr Roth faxed another letter to Mr Xenos, saying (Blue AB 191):

“We refer to our earlier letter today and advise we have suggested to our client that if he approves of the terms of the agreement he should sign same and return to us by fax.

We have since been instructed that the terms are as agreed and that they will be signed and returned to us shortly.

In the event your client agrees that the terms reflect the agreement please have your client sign same and we can exchange by fax.”

37 On the same afternoon again, at about 4.40, Mr Roth faxed a further letter to Mr Xenos (Blue AB 192):

“We refer to previous communication in relation to the above matter and advise that Warwick Pollard has drawn to our attention the following omission from the terms of the agreement.

In relation to C. the date has been omitted and we suggest the following:

‘Eight weeks from the date of this Agreement or two weeks after the date of the removal of the Receiver whichever is the later.’

In relation to D. and M. the Agreement was that neither party would take any action in relation to the matters the subject of the District Court and Supreme Court proceedings. In this respect an appropriate amendment is required.”

38 The same kinds of ambiguity can be seen in the two further letters just set out as in the first one of the afternoon. The writer seems to me to be proceeding on the basis that the parties will do anything necessary to bring the accord reached in the morning to finality and is not anticipating any need to consider the legal enforceability of what had been agreed.

39 Indeed, in one place in her reasons, Bergin J appears to have reached much the same conclusion. In regard to the request in the 2.45 letter that Mr Baloglow sign the typed document, she said that she accepted that Mr Roth saw that as a “formality” , and continued:

“I accept that Mr Roth did not at that time turn his mind to the necessity for a signature pursuant to s 23C of the Conveyancing Act 1919 (NSW). Mr Roth’s focus was upon ‘the settlement’ by agreement of all the disputes between the parties.”

40 It was not until the following day, 29 July 1999, that there was the first sign of possible danger about the carrying into effect of the accord.

41 Further facts found by Bergin J. On 29 July 1999 there was a telephone conversation between Mr Roth and Mr Xenos of which Mr Roth gave evidence. Mr Xenos did not deny its terms and Bergin J accepted that it took place. In this conversation Mr Xenos reported to Mr Roth that Mr Baloglow’s wife “was furious with the agreement”, that the husband and wife “had one of the worst fights ever” over its terms, that they were coming to see him and he would try to persuade Mr Baloglow to sign. He also said that if Mr Baloglow “does not follow my advice I will not act for him any further and [he] can take his chances with the receivership”.

42 Comment. In my view it must have been at this point that Mr Roth first had occasion to give specific thought to the enforceability of what had been agreed the previous day. His response, which I will set out in the next paragraph, was what any prudent solicitor was likely to say in the circumstances. At this point Mr Roth must have begun to reflect on what had happened at the meeting and decided to act on the view that it had resulted in an enforceable agreement. This was a perfectly proper position for him to take up, but once he had reached that position it makes his assertions of it afterwards less valuable for casting light on what was said and done at the meeting than before he began to focus on it. Whether or not the position he was adopting was right would depend principally, in my opinion, on what was said and written at the meeting. In my opinion the only evidence of what took place after the meeting of any potential value to the court in deciding what happened at the meeting was what took place before questions arose in the minds of the solicitors about the legal effect of what had been said and written at the meeting.

43 What happened next. Mr Roth’s response to Mr Xenos’s informing him that if Mr Baloglow did not accept his advice he would not act for him any further (a statement which carried with it the obvious possibility that Mr Baloglow might not take his advice) was

“Roth: You should also remind him that an agreement was reached by which he is bound.

Xenos: I suppose that’s correct.

Roth: I have just completed a letter to you about this matter before you called.

Xenos: If Theo does not follow my advice I will not act for him any further and Theo can take his chances with the receivership.

Roth: Any dispute will revolve around the terms of the agreement not the receivership.

Xenos: That’s most probably right.”

44 In the next few days Mr Roth was active in communicating with Mr Xenos by fax and phone message, on the basis that Mr Baloglow would go ahead with what had been agreed. In these communications he did not refer to the possibility that Mr Baloglow might not go ahead. However, the conversation with Mr Xenos on 29 July 1999 must have alerted him to that possibility and Mr Xenos’s non responsiveness must have made him wonder whether Mr Xenos had prevailed on Mr Baloglow to take his advice. In the meantime his communications were all made on the footing both that Mr Baloglow would go ahead (no doubt he was hoping this would happen) and that an enforceable agreement had been made at the meeting.

45 The next communication after the telephone conversation of 29 July 1999 was a faxed letter of 30 July 1999, in which Mr Roth wrote to Mr Xenos referring to “the concluded agreement” reached in the meeting and saying that in the absence of any suggestion that the typed version of the agreement with the amendments that had been submitted did not properly reflect the agreement, Mr Roth would go ahead with the preparation of various documents including a draft deed. The letter also proposed that Mr Xenos take certain steps towards the carrying out of the agreement. The letter contemplated that one of the first steps to be taken was the termination of the Receiver’s appointment. Mr Xenos did not reply in writing to this letter.

46 On 4 August 1999 Mr Roth faxed a letter to Mr Xenos in the following terms:

“We refer to the writer’s telephone conversation with you yesterday in relation to the above matter and note you agreed to telephone the Receiver and Manager to confirm the present position for the termination of the receivership.

We understand that you have not yet telephoned the Receiver and Manager of your own accord and further have not returned their telephone calls.

It is most likely that costs are being incurred to the Receiver and Manager which would not otherwise be incurred if you had confirmed to the Receiver and Manager the agreement and the proposed application for the termination of the receivership with due diligence. Certainly consequences must flow from that default.

Please urgently contact the Receiver and Manager and confirm same by return fax also as a matter of urgency.”

47 On 5 August 1999 the Receiver wrote to Mr Xenos asking him to confirm if in effect an agreement had been reached for the termination of his appointment as Receiver. On the same day Mr Xenos wrote to the Receiver saying “that the parties had reached an agreement in principle”, heads of agreement had been prepared, Mr Roth was “preparing the agreement reflecting the terms and conditions between the parties”, that he (Mr Xenos) had been asked to confirm this and was now doing so. The letter ended with Mr Xenos asking for confirmation that the Receiver would consent to being removed and asking also that the Receiver forward both “to the writer and to Mr Roth your itemised memorandum of costs as soon as possible”.

48 Comment. To this point Mr Xenos’s conduct does not seem to me to have been unequivocally on the basis that an enforceable agreement had been made on 28 July 1999. Rather, it seems to me more consistent with his taking the view that the accord of that day, whether legally enforceable or not, ought to go ahead and that he was trying to persuade his client to go ahead with it. Even the final request in the letter of 5 August 1999 to the Receiver seems to me just as consistent with Mr Xenos’s position being that he was still trying to get his client to go ahead with the accord irrespective of whether an enforceable agreement had been made or not, as it is with his having the view that an enforceable agreement had been reached at the meeting. It also seems likely that by this date Mr Xenos had reason to think Mr Baloglow might not go ahead with the accord and was himself beginning to ponder the question of its enforceability. Thus, by this date the usefulness of post meeting statements by the solicitors for the task of working out what had actually happened at the meeting, seems to me to have diminished virtually to vanishing point.

49 Also on 5 August 1999 Mr Roth wrote to Mr Xenos, referring to “previous communication” in the matter and enclosing “for your approval draft Deed and Notice of Motion”. The Notice of Motion was for the removal of the Receiver. The draft deed was in the following terms:

“

This

DEED

is made on this day of August, 1999

_______________________________________________

BETWEEN

AND

SIMON KONSTANTINIDIS

OF 104 Silver Street, Marrickville in the State of New South Wales (‘Konstan’).

AND

THEO BALOGLOW

of 7 Woodside Avenue, Burwood in the State of New South Wales (‘Baloglow’).

AND

FAYE BALOGLOW

of 7 Woodside Avenue, Burwood in the State of New South Wales (‘Faye’).

AND

VICKI KONSTANTINIDIS

of 104 Silver Street, Marrickville in the State of New south Wales.

AND

STEVEN BALOGLOW

of 7 Woodside Avenue, Burwood in the State of New South Wales.

AND

CHRISTOPHER BALOGLOW

of 7 Woodside Avenue, Burwood in the State of New South Wales.

AND

LYNETTE BALOGLOW

of 7 Woodside Avenue, Burwood in the State of New South Wales.

AND

PETER BALOGLOW

of 7 Woodside Avenue, Burwood in the State of New South Wales.

RECITALS

A. Since about February 1995 Konstan and Baloglow have been involved in the investment in and development of real estate in partnership in equal shares.

B. The purchase and sale of real estate and development was carried out in the names of the persons and entities set out in the schedule annexed hereto and marked ‘A’. That schedule also sets out the properties which were purchased by those respective persons and entities.

C. The properties referred to in numbers 1 and 3 of the schedule have been sold and Baloglow and Konstan have each received by way of distribution through their respective loan accounts one half of the net proceeds of sale before income tax.

D. Konstan as solicitor represented Baloglow as plaintiff in Supreme Court of NSW proceedings No 50103 of 1995 against Con Kalls, Peter Kaliaropoulos and Denise Kalls as defendants (the ‘Kalls Proceedings’).

E. Baloglow commenced proceedings against Konstan in District Court proceedings No 8008 of 1998 (the ‘District Court Proceedings’).

F. Konstan commenced proceedings against Baloglow and others in Supreme Court of NSW proceedings No 2571 of 1999 (the ‘First Supreme Court Proceedings’) for the winding up of their partnership and the appointment of a Receiver and Manager to the partnership assets.

G. Baloglow commenced proceedings against Konstan and others in Supreme Court of NSW proceedings No 2596 of 1999 (the ‘Second Supreme Court Proceedings’) for the appointment of a Receiver and manager to the partnership assets and for the removal of the District Court Proceedings to the Supreme Court.

H. By order of the Supreme Court of NSW on 4 June 1999 the partnership was terminated and Geoffrey McDonald was appointed as the Receiver and Manager of the assets of the partnership and of the companies through which the partnership traded.

I. By order of the Supreme Court of NSW on 4 June 1999 the District Court Proceedings were transferred to the Supreme Court of NSW and are now proceedings No 3265 of 1999 in that Court (the ‘Third Supreme Court Proceedings’).

J. Baloglow made certain complaints to the Law Society of NSW against Konstan in relation to matters alleged to have occurred in relation to the Kalls Proceedings.

K. Konstan and Baloglow have agreed to settle all disputes between them and in particular but not limited to those arising out of the matters referred to in these recitals on the terms and conditions contained herein.

OPERATIVE PART

1. this deed shall be binding upon the parties, their administrators, heirs and assigns.

2. Baloglow and Faye shall transfer to Konstan or his nominees all their right, title and interest in:-

(i) all their shareholding in:-

(a) Carlisle Developments Pty Limited and

(b) Balkon Pty Limited;

(ii) all loan accounts they have either jointly or severally in:-

(a) Carlisle Developments Pty Limited and

(b) Balkon Pty Limited;

3. Steven Baloglow, Christopher Baloglow, Lynette Baloglow and Peter Baloglow shall transfer to Konstan or his nominees all their right, title and interest in:-

(i) all their shareholding in Balkon Pty Limited; and

(ii) all loan accounts they have either jointly or severally in Balkon Pty Limited.

4. Baloglow shall transfer to Konstan or his nominees:-

(i) all his right, title and interest in:-

(a) all his shareholding in Ricvale Holdings Pty Limited;

(b) all his loan accounts in Ricvale holdings Pty Limited; and

(c) the property known as:-

(i) 58 Whistler Street, Manly; and

(ii) 4 Denison Street, Manly.

5. Steven Baloglow, Christopher Baloglow and Lynette Baloglow shall transfer to Konstan or his nominees all their right, title and interest in the property known as 58 Whistler Street, Manly.

6. Baloglow shall resign as a director of:-

(i) Carlisle Developments Pty Limited;

(ii) Balkon Pty Limited; and

(iii) Ricvale Holdings Pty Limited.

7. Baloglow shall resign as a secretary of:-

(i) Carlisle Developments Pty Limited; and

(ii) Balkon Pty Limited.

8. Konstan shall pay or cause to be paid to Baloglow the sum of $1,050,000.

9. On the Settlement Date the following events will occur contemporaneously:

(i) the Baloglow Interests shall deliver to Konstan’s solicitors transfers of the shares referred to herein duly executed by them in favour of the Konstan or his nominees as transferees together with the share certificates relating to those shares and thereupon beneficial ownership of those shares will pass to Konstan or his nominees;

(ii) the Parties shall do all such acts and things and sign all such documents as are necessary to consent to the transfer referred to in paragraph (a) above to give effect to this Agreement including such documents altering any pre-emptive rights provisions in the Articles of Association of the respective companies;

(iii) Konstan shall comply with clause 8 provided that if any of the Baloglow Interests fail to transfer any of the shares which they are bound to transfer pursuant to this deed Konstan shall be entitled to treat such failure as the failure of all the Baloglow Interests and shall not be obliged to settle in respect to some only of the shares due to be transferred on the Settlement Date.

(iv) The Baloglow Interests will deliver to Konstan’s solicitors the common seal, certificate of incorporation, asset register, all other registers, management accounts, budgets and all books of account, records, documents and other business papers of any kind of the companies which they have in their possession custody or control.

(v) Baloglow shall deliver to Konstan his written resignations as director and secretary of the companies as referred to clause 6 together with a statement that he has no claim of any nature whatsoever against those companies other than as is referred to in this Deed;

(vi) there will be held a meeting of the directors of the companies at which the resignations of Baloglow as director and secretary are accepted; and

(vii) the Baloglow Interests shall deliver to the solicitor for Konstan executed transfers in registrable form of the properties referred to in clauses 4(i)(c) and

10. The companies shall, as soon as is reasonably practical, lodge the appropriate form of notification with the Australian Securities commission in relation to the matters referred to in clauses 6 and 7 and provide Baloglow’s solicitors with a copy of same.

11. Baloglow and Konstan shall join in and do all such things as may be necessary to effect the termination of the appointment of the Receiver and Manager to the former partnership’s assets.

12. Baloglow and Konstan shall each pay one half the fees, costs and disbursements of the Receiver and Manager up to the date of the termination of his appointment.

13. Baloglow and Konstan shall do all such things as are necessary to effect the sale of the property known as 342A Marrickville Road, Marrickville (the ‘Marrickville Property’) by Larripalm Pty Ltd as soon as is reasonably practicable.

14. Baloglow and Konstan shall do all such things and give all such instructions as are necessary to their respective solicitors such that those solicitors can jointly act for Larripalm Pty Ltd in relation to the sale by auction of the Marrickville Property which sale shall be effected in accordance with the provisions of clauses 15, 16 & 17.

15. The Auctioneer and selling agent in respect of the auction sale of the Marrickville Property shall be determined in the following manner:-

(i) By agreement in writing between the respective solicitors for Baloglow and Konstan;

(ii) failing agreement between the respective solicitors for Baloglow and Konstan then either of those solicitors may in writing request the Executive Officer of the Real Estate Institute of New South Wales to nominate the Auctioneer and selling agent.

16. The reserve price in respect of any auction sale of the Marrickville Property shall be determined in the following manner:-

(i) By agreement in writing between the respective solicitors for Baloglow and Konstan;

(ii) failing agreement between the respective solicitors for Baloglow and Konstan then either of those solicitors may in writing request the Executive Officer of the Australian Institute of Valuers and Land Economists Inc in New south Wales to nominate a valuer and the reserve price shall be set by that valuer.

(iii) In the event a reserve price is set pursuant to 15(ii) then it may be varied at any time in accordance 15(i).

17. In any event should the highest bid be less than the reserve price the Marrickville Property shall be sold at the auction to the highest bidder at the best price obtainable and in that respect the agent for sale shall determine such price at his sole and absolute discretion subject to any agreement in writing between respective solicitors for Baloglow and Konstan to the contrary.

18. Baloglow and Konstan shall be responsible for the costs of their respective solicitors in acting on the sale of the Marrickville property.

19. Baloglow and Konstan shall be responsible for the costs of their respective solicitors in relation to the termination of the appointment of the Receiver and Manager.

20. Baloglow and Konstan shall each nominate an accountant for the purpose of the nominated accountants acting jointly in the preparation of income tax returns up to and including the period ending 30June 1999 for:-

(i) Carlisle Developments Pty Limited;

(ii) Balkon Pty Limited;

(iii) Ricvale Holdings Pty Limited; and

(iv) Larripalm Pty Limited; and

(v) the partnership of the parties and for the final income tax return of Larripalm Pty Limited.

21. Baloglow and Konstan shall pay and be responsible for the fees and charges of the accountant nominated by them respectively.

22. Baloglow and Konstan shall do all such things are necessary for the solicitors acting for Larripalm Pty Limited in relation to the sale of the Marrickville Property to retain the net proceeds of sale and to pay same in the following order of priority:-

(i) all income tax liabilities in relation to:-

(a) Carlisle Development Pty Limited for all years up to and including the financial year ended 30/6/99.

(b) Balkon Pty Limited for all years up to and including the financial year ended 30/6/99; and

(c) Ricvale Holdings Pty Limited for all years up to and including the financial year ended 30/6/99.

(d) Larripalm Pty Limited for all years up to and including the financial year ended 30/6/2000.

(ii) all expenses of the companies referred to in clause 22(1) and the partnership to the date of completion of the matters referred to herein; and

(iii) One half to each of Baloglow and Konstan by way of dividend distribution.

23. In the event that there are insufficient funds available to meet the payments to be made pursuant to clause 22 then Baloglow and Konstan shall each contribute one half of the shortfall by bank cheque into the trust account of the solicitors acting for Larripalm Pty Limited in relation to the sale of the Marrickville Property.

24. Baloglow and Konstan shall do all such things and give all such instructions to Warwick Michael Pollard and Kon Koufos as are necessary for them to prepare the income tax returns referred to in clause 20 prior to the date being 8 weeks after the date of this Deed.

25. Baloglow and Konstan shall do all such things and give all such instructions to Warwick Michael Pollard and Kon Koufos as are necessary for them to arrange for the striking off from the ASIC register of Larripalm Pty Limited once the final income tax return has been lodged and assessed and all liabilities of the company paid and the balance of any net funds of the company distributed to the shareholders.

26. Baloglow and Konstan shall do all such things and give all such instructions as are necessary to effect the dismissal of the District Court Proceedings and the Third Supreme Court Proceedings by consent with each party to those proceedings to pay their own costs.

27. Baloglow shall, within 7 days of the date of this Deed, irrevocably, unconditionally and unreservedly withdraw his complaint to the Law Society of NSW in relation to the matters the subject of the District Court Proceedings and the Third Supreme Court Proceedings.

28. Baloglow and Konstan shall do all such things and give all such instructions as are necessary to effect the assignment of all Carlisle Developments Pty Limited interest in a loan of $600,000 made by Carlisle Developments Pty Limited interest in a loan of $600,000 made by Carlisle Developments Pty Limited to Larripalm Pty Limited as follows:-

(i) to Baloglow the sum of $300,000; and

(ii) to Konstan the sum of $300,000.

29. Baloglow and Konstan shall each be entitled to the benefit in equal shares of all rents received on account of the former partnership including those received by the companies referred to herein to the date of completion of this agreement.

30. Baloglow and Konstan shall pay in equal shares all interest outstanding to the date of completion of this agreement on all mortgages in elation to the partnership, debts and the debts of the companies referred to herein.

31. Other than as is provided herein each party releases the other party from any and all claims, demands, and actions that they have or at any time had or could, would or might but for this Deed at any time or times hereafter had or have had against the other by reason or on account of or in any way connected with any of the matters referred to herein and each party shall indemnify the other in respect to any and all of the foregoing

except that

it is acknowledged that there is current litigation by Chris Darin as plaintiff against Konstan and Baloglow as defendants in the Supreme Court of NSW.

32. Baloglow, Faye, Steven Baloglow, Christopher Baloglow, Lynette Baloglow and Peter Baloglow acknowledge and agree that other than as is referred to in this Deed they have no right title or interest in any shares in any of the companies referred to herein or in any of the properties registered in the names of any of the companies referred to herein or in any of the properties referred to herein.

MISCELLANEOUS PROVISIONS

33. ‘Baloglow Interests’ means Baloglow, Faye, Steven Baloglow, Christopher Baloglow, Lynette Baloglow and Peter Baloglow jointly and severally.

34. ‘Settlement Date’ shall be the later of:-

(i) 8 weeks from the date of this Deed;

(ii) The date being 7 days after the date of termination of the appointment of the receiver and manager; and

35. In the event of a breach or apprehended breach of this Deed by any party the party not in breach shall be entitled to an injunction restraining the party in breach from committing any such breach or further breach without the moving party having to show or prove actual damage.

36. This Deed is governed by and shall be construed in accordance with the law of New South Wales and the parties irrevocably and unconditionally consent to the jurisdiction of the Courts of that State.

37. The obligations created under this Deed shall survive the completion of the Deed.

38. If any provision of this Deed shall be held to be invalid I any way or unenforceable it shall be severed and the remaining provisions shall not, in any way, be affected or impaired and this Deed shall be construed so as to most nearly give effect to the intentions of the parties as set out in this Deed.

39. This Deed may be amended only with the written agreement of all the parties.

40. This Deed will be binding upon and endure to the benefit of the parties and, unless repugnant to the sense or context, to their respective successors and permitted assigns.”

50 I have set the proposed deed out in full for a number of reasons. The recitals give a clear picture of events leading up to 28 July 1999; it may be useful to readers wishing to compare what it contains with what is contained in the six numbered sheets handwritten by Mr Roth on 28 July 1999; it shows the detail of how the winding up of the partnership could have been implemented; its availability will also make it easier to follow some of the submissions in the appeal.

51 Mr Baloglow terminated Mr Xenos’s retainer on or about 11 August 1999. He then retained the firm of solicitors who conducted the litigation before Bergin J and have continued to do so in this court. By letter dated 23 August 1999, this firm wrote to Mr Roth saying that Mr Baloglow denied any binding agreement between the parties and asserting, among other things, that Mr Xenos had not been acting on behalf of a number of parties named in the draft deed.

52 According to the appellant’s chronology, the specific performance proceedings now under consideration were commenced against him by Mr Konstantinidis on 12 November 1999.

Position at trial about authority and parties

53 There were some arguments in the appeal about the authority of Mr Xenos at the meeting and also about the position in the proceedings of Mrs Baloglow and the children of Mr and Mrs Baloglow in regard to which it is useful to mention here what relevantly happened at the trial.

54 In regard to parties, a question which could have been significant had it been contested was the nature of the interest of Mrs Baloglow and the four children in the shares registered in their names and in the properties in regard to which Mrs Baloglow and three of the children were among the registered proprietors.

55 At the commencement of the hearing before Bergin J, the plaintiff's statement of claim named eight defendants. The first was Mr Baloglow. The second third and fourth were his children Steven, Christopher and Lynette, these being the three who were the registered proprietors with their father of 58 Whistler Street, Manly. The fifth, sixth, seventh and eighth were Larripalm, Carlisle, Ricvale and Balkon. The statement of claim alleged that the plaintiff and the first four defendants had made the alleged agreement of 28 July 1999. It also alleged that if Mr Xenos had not had authority on that day to act for the second third and fourth defendants which lack of authority Mr Baloglow had asserted and the plaintiff disputed, then the necessary authority was implied.

56 When the proceedings were called on for hearing Mr B Oslington QC announced his appearance with Mr G. Segal for the plaintiff, Mr TGR Parker announced his appearance for the first defendant and Mr DL Olivera announced his appearance for the second third and fourth defendants. Her Honour then noted that the receiver of the fifth to eighth defendants had filed a submitting appearance.

57 Mr Oslington then opened the case for the plaintiff and Mr Parker opened the case for the first defendant. At this point Mr Olivera asked to be excused from the hearing. The transcript records (in indirect speech) that Mr Oslington “asked Mr Olivera to advise whether he is asserting that his clients have any beneficial interest in the properties” and that “Mr Olivera advised that they did not”. As Bergin J recorded in a later costs judgment delivered on 23 February 2001, "the plaintiff then proceeded on the basis of an agreement alleged between the plaintiff, Mr Konstantinidis, through his then agent, Mr Roth, and Mr Baloglow, through Mr Xenos". Mrs Baloglow had not been made a defendant and, so far as the transcript shows, was not mentioned at this stage of the first day’s hearing.

58 After this, affidavits were read and objections dealt with. The following extracts from the transcript throw some light on the position concerning authority and parties at the trial.

“(Mr Oslington advised that in light of the position of the children he now does not read the affidavit of Joseph Kotowicz sworn 8 September 2000.)”

“Paragraph 3 objected to, not pressed in the light of there being no issue that Mr Roth had authority from the plaintiff to enter into any agreement.”

“Paragraph 15 objected to on the same basis. Pressed as establishing a negative in an admissible way and on relevance to the first defendant’s defence as to the children not being parties to the agreement.

OSLINGTON: I inform your Honour of these facts, the handwritten agreement which is the agreement we say is the enforceable agreement made on the morning of the 24 July has as its parties only the plaintiff and the first defendant and whatever was produced thereafter in written form would only be enforceable in our case if it accorded with that handwritten agreement. The fact that the typed version of the agreement included the names of the children as parties may well be ground for the first defendant to reject that as representing the agreement which was reached so the fact that Mr Xenos never mentioned anyone having a beneficial interest other than the plaintiff and the first defendant is entirely consistent with our case and inconsistent as we now understand it with what part of the defence is going to be.

(Her Honour ascertained from Mr Parker that the remaining admitted parts of the affidavit of Mr Xenos did not claim beneficial interest.)

Paragraph 13 pressed as being of the same character as paragraph 15.

(Mr Parker indicated that the handwritten document did not name anybody in the conventional sense and referred her Honour to the affidavit of Mr Roth of 27 September, the first annexure.

Mr Oslington indicated there was no mention that Mr Roth was acting on behalf of the plaintiff. The primary case was that Mr Xenos was acting for the first defendant only and an alternative case was pleaded when it was suggested that the children might have had a beneficial interest. However there was now no issue between the parties as to the absence of any beneficial interest on the part of the children.)”

59 The question of parties came up again, still on the first day of the hearing, in part of the cross-examination of Mr Roth. He was being asked about the differences between the handwritten six sheets of 28 July 1999 and the later and much fuller draft. This led to discussion of the shares held by Mrs Baloglow in the partnership companies. The following questions were asked and answers given at Black AB 34 l 50 to 35 l 55:

“Q. And one of the things that occurred to you prior to your submitting the draft in August was that, as you understood it, your client was paying money to have not just Mr Baloglow but all members of his family out of the partnership?

A. The agreement was that he would get everything that he didn’t already own, that included all the shareholdings in the various companies.

Q. And as far as you understood it, he wasn’t going to pay that money unless he could have Mr Baloglow’s, not just Mr Baloglow’s shares but Mrs Baloglow’s shares, if any, in the partnership companies?

A. That is correct.

Q. He didn’t want to pay for that money and then find himself a co-shareholder with Mrs Baloglow?

A. No, that wouldn’t have been consistent with the agreement.

Q. And that was why you introduced into the draft deed a requirement that Mrs Baloglow as well as Mr Baloglow should transfer her shares?

A. If you have a look at paragraph A of the handwritten document, it says, ‘TB transfer to SK or his nominees all shareholdings’ – not his shareholdings, all shareholdings in his company.

Q. Oh really, but he could only transfer his own shareholding, could he?

A. no, that is not right.

Q. He could not transfer Mrs Baloglow’s shareholding?

A. that would depend on what she held in trust for him.

Q. She held all her shares in trust for him?

A. She held all her shares in properties in trust for him and Mr Konstantinidis.

Q. Just a minute. That would depend on her holding shares in trust for him?

A. No, it would also be consistent with her holding her shares on trust for Mr Baloglow and Mr Konstantinidis.

Q. There was no discussion about that matter at the meeting, was there?

A. No.

Q. As far as the meeting was concerned there was nothing at all said about the basis on which Mrs Baloglow held her shares in the partnership companies?

A. No.

Q. That was just a topic which wasn’t touched upon at all?

A. No.

Q. And that was so, that Mr Baloglow would transfer his shares to Mr Konstantinidis and he’d get no more than that, do you agree with that?

A. No, because not all his shares but all shareholdings in those companies would be transferred to Mr Konstantinidis that he didn’t already own.”

60 Counsel for Mr Konstantinidis took up these subjects with Mr Roth in re-examination, as follows:

“Q. And another thing which was not discussed you said was the position of Mr Baloglow’s children?

A. I didn’t see that as an issue. The affidavit of Mr Baloglow and Mr Konstantinidis in the proceedings 2571/9--OBJECTION – and 2596/99 both said --

OBJECTION. ALLOWED.

A. The affidavit of Mr Baloglow in proceedings 2596/99 and the affidavit of Mr Konstantinidis in proceedings 2571/99, which were instituted for the appointment of a receiver, both said that all the properties and the companies were partnership assets of the partnership between the two of them.

Q. Another thing you agreed was not discussed was Mr Baloglow’s wife. Is there a reason why that was not discussed, or she wasn’t discussed?

A. Because she had not

beneficial interest in the partnership assets.

Q. Another thing you said was not discussed at the meeting on 28 July was the nature of the interest of Mr Baloglow and Mr Konstantinidis in the partnership assets. Is there any reason why that was not discussed?

A. It was clearly covered in their affidavit, they each had a one half interest in the whole of the partnership assets.

Q. Another thing you said was not discussed at the meeting on 28 July was the interest which Mr Baloglow and Mr Konstantinidis had in the partnership properties. Why was that not discussed?

A. They both had an equal interest in the whole to the exclusion of anybody else.

……

Q. The final thing you were asked about which was not, which you said was not discussed at the meeting was Mrs Baloglow’s shareholding in one of the companies. Why was that not discussed?

A. Because she only held a legal interest in it, not a beneficial interest.

OBJECTION. PRESSED. ALLOWED.”

61 Counsel for Mr Baloglow was then given leave to cross-examine Mr Roth further. This further cross-examination went as follows:

“PARKER Q: You were just asked a series of questions by Mr Oslington in which he asked you why certain matters had not been discussed. Were any of those matters, if so which, matters which actually went through your mind on 28 July 1999?

OBJECTION. ALLOWED.

HER HONOUR: Q. Mr Roth, do you understand the question?

A. Yes.

Q. Could you answer it please?

A. I didn’t turn my mind to it at the meeting because my mind had been turned to it previously. I had written to Mr Xenos and said that the only terms on which Mr Konstantinidis would be prepared to settle was on the transfer of all the interests that he did not hold in the partnership assets other than Larripalm. I understood, as I presumed Mr Xenos understood from his involvement in the matter, that the only parties which had a beneficial interest in the partnership assets were the two of them.

Q. Did you in the course of the meeting advert to whether or not there needed to be discussion about the question of what interest Mr Konstantinidis and Mr Baloglow had in the partnership assets?

A. Only to the extent of at the time of drawing the document dealing with the relevant companies and properties, not in relation to the nature of their interest.

Q. You said earlier in answer to one of Mr Oslington’s questions that there was no need to consider the position of Mrs Baloglow?

A. Correct.

Q. Was that something that you --

WITHDRAWN.

Q. Did you engage in that thought process during the meeting?

A. I probably engaged in that thought process at the time of writing the document.

Q. Can you remember whether you engaged in that thought process in the meeting or not?

A. I can remember that I did not in the meeting but I would have when I was writing the document.

Q. Which document?

A. The handwritten agreement.

Q. What do you mean when you say you didn’t engage in the process during the meeting but you did when you wrote the document?

A. Because when I was writing the document I was dealing with legal interests. When I was dealing with Mr Xenos on the basis of settling the matters between the two of them I was, it was only dealing with the partnership assets.

Q. Isn’t the fact of the matter that you can not recall what was going through your mind during this meeting and that your answers to Mr Oslington in re-examination are reconstruction based on what you think you either might or ought to have thought at the time?

A. No.

WITNESS RETIRED AND EXCUSED.”

62 What happened next in regard to Mr Xenos’s authority, must be understood in light of the position reached on the first day of the hearing, as set out in the preceding paragraphs. At the start of the second day of the trial, counsel for Mr Baloglow agreed that on the previous day he had made a concession which had not been recorded in the transcript, the substance of which was that

“the first defendant [Mr Baloglow] did not take an authority point in this case and … the first defendant’s case was that it never reached the stage at which the authority point could arise and … if it is established that there was a binding agreement made on 28 July 1999 in terms of the handwritten document the first defendant will not contend that Mr Xenos did not have ostensible authority from the first defendant to enter into the agreement”.

The plaintiff’s case at trial

63 Following what had taken place on the first day and the beginning of the second day of the trial concerning authority and parties as set out in preceding paragraphs, the case for Mr Konstantinidis became that an enforceable contract between him and Mr Baloglow had been made at the meeting, the terms of which were those written down by Mr Roth on the six sheets. It was not claimed that pars P and Q in the typed document faxed in the afternoon of 28 July 1999 to Mr Xenos (see par 34 above) had been explicitly agreed on, nor was there any claim that the agreement sought to be proved included all the terms in the draft deed of 5 August 1999.

The trial judge's reasons

64 Bergin J first set out the main aspects of the evidence given by Mr Roth, Mr Pollard and Mr Xenos of what was said and done at the meeting. (As already mentioned, I have only reproduced above the evidence, as recounted by Bergin J, which she accepted.) She then set about discussing the evidence of the three witnesses preparatory to explaining why she concluded that she should accept Mr Roth's evidence in its entirety. She prefaced her discussion of the evidence by remarking that counsel for Mr Baloglow

"conceded that if I am satisfied that the conversations took place in the terms alleged by Mr Roth then the defendant would have difficulty maintaining his claim, but for the Statute of Frauds defence"

65 Bergin J. then dealt with, and rejected, the arguments put by counsel for Mr Baloglow why Mr Xenos' s version of what happened at the meeting should be accepted. Because, in the appeal, it was accepted that Bergin J's factual findings could not be disturbed, there is no need to consider the rejected arguments, although they appear again, to some extent, in another aspect of the appeal.

66 Having decided what had been said and done at the meeting, Bergin J. did not rely only on her view of the facts of the meeting in deciding that an enforceable agreement had been made at it. She thought that the conversation of 29 July 1999 between Mr Roth and Mr Xenos was "very telling". She also thought that the facts that Mr Xenos never denied that Mr Roth's six numbered sheets reflected the terms agreed to on 28 July 1999 and wrote the letter of 5 August 1999 to the receiver, were significant. In her view,

“The conversation on 29 July 1999 between Mr Roth and Mr Xenos would leave no doubt in an objective listener that these two men were referring to a concluded agreement that had been reached the previous day and that each was satisfied that the document prepared by Mr Roth and checked by Mr Xenos reflected the terms agreed to which each had authority and instructions from their respective clients to agree.”

67 It had been argued for Mr Baloglow that the term "draft" in Mr Roth's first letter of 28 July 1999, the request by Mr Roth for Mr Baloglow to sign, the absence of any signature by Mr Xenos for Mr Baloglow, and the use of the words "in principle" in Mr Xenos's letter of 5 August 1999 to the receiver all pointed, objectively, to its not having been the intention of either side at the meeting that the agreement there reached should be a concluded, enforceable agreement. Bergin J did not think that any of these matters stood in the way of her conclusion. They were all consistent in her view, with her conclusion, and with Mr Roth's focus having been on “the ‘settlement’ by agreement of all disputes between the parties".

68 Bergin J. then said :

“This case has necessarily involved a determination of the intention of the parties in the context of their communications over a period of time:

ABC v XIVth Commonwealth Games Ltd

(1988) 18 NSWLR 540 at 549-550. I am satisfied that each of the plaintiff and first defendant authorized their respective solicitors, Mr Roth and Mr Xenos to reach a concluded agreement in respect of all the properties as evidenced in the handwritten document prepared on 28 July 1999. I am satisfied that the handwritten document represents the terms of a concluded agreement by which the parties intended to be immediately bound and that they intended to restate the terms in a fuller and more precise form not different in effect:

Masters v Cameron

(1954) 91 CLR 353 at 360.

I am satisfied that by this agreement the first defendant agreed that he would do all things reasonable to cause the registered proprietors of the properties, (the ‘vehicles’ used by the partnership to purchase the partnership properties – the companies and the children) to transfer those properties to the plaintiff on the payment of the agreed sum:

Butts v O’Dwyer

(1952) 87 CLR 267 at 280. I am also satisfied that the apportionment of the amounts in respect of the various properties and the date for the payment of the agreed sum were matters of ‘machinery’ and their absence from the document does not vitiate the binding agreement that was reached:

Hall v Busst

(1960) 104 CLR 206 per Fullagar J at 222.”

69 Next, and finally, Bergin J considered the Statute of Frauds defence. She held that the rule, the basis of the decision in a number of cases of which Leeman v Stocks [1951] 1 Ch 941 was an example, was applicable. She referred to this rule as that of the "perfect agreement" and mentioned that it had been accepted as an operative rule by the High Court in two decisions, the later of which, Pirie v Saunders (1960) 104 CLR 149, she briefly discussed; she thought its facts were distinguishable from those of the present case, because in the present case, on her findings, the document which Mr Roth wrote out was "a reflection of what was agreed between the authorised representatives of the parties". Further, when, starting from that basis, the document was checked by Mr Xenos as Mr Roth wrote it, Mr Xenos called it "a sensible conclusion", and Mr Xenos then checked it, recognising the initials TB as signifying his client’s name she was of opinion that the document was recognisable as a sufficient note or memorandum of the concluded agreement to bind Mr Baloglow.

70 Bergin J accepted a further argument leading to the same conclusion. This was that Mr Roth's six sheets, taken with the later correspondence between Mr Roth and Mr Xenos and Mr Xenos's letter of 5 August 1999 to the receiver together comprised a sufficient note or memorandum. In accepting this argument, Bergin J. expressed the opinion that the letter of 5 August 1999 did refer to the agreement reached at the meeting in a manner acknowledging it as a binding contract.

71 In answer to the raising by Mr Baloglow of the Statute of Frauds, Mr Konstantinidis relied on the doctrines of part performance and estoppel. In view of her decision that there was a sufficient note or memorandum of the agreement, Bergin J. did not decide the part performance and estoppel issues. She said:

“82. It is unnecessary in the circumstances to decide the claims of part performance and estoppel. There is no issue that the conduct must be unequivocal and in its nature referable to the agreement. If it was necessary to decide I am of the view that the fax of 5 August 1999 is such a step. Both parties approached the Receiver for the purpose of requesting him to cease work and forward to them an itemised Memorandum of Cost as soon as possible. In my view these were clear steps referable to the concluded agreement.

83. The plaintiff took further steps including the arranging of finance for the purpose of paying Mr Baloglow the amount agreed and withdrawing from a purchase to ensure that he would not be over-committed at a time when the payment to the first defendant was imminent.”

The arguments on appeal for Mr Baloglow: my views

72 Mr Baloglow’s defences (a) to (d) in this case are set out in par 9 above. I will deal with (b) first, then with (a) and (c) together and last with (d).

73 Mr Baloglow’s defence (b): Persons named as parties had not been party to the meeting. I have set out in pars 49 to 58 above what happened at the trial about both parties and authority. In my view, at least as from the second morning of the trial, any issues about parties and authority had fallen by the wayside. It was accepted by both sides that Mr Konstantinidis and Mr Baloglow were the only persons with any beneficial interest in partnership property and that partnership property included the shares in the four companies that were agreed to be partnership companies.

74 Thus, for example, the parties were agreed that the shares held by Mrs Baloglow and the four Baloglow children in Balkan and the share held by Mrs Baloglow in Carlisle were held on trust by those registered shareholders for the partnership; that is, although it was not spelt out in this fashion at the hearing, Mr Konstantinidis and Mr Baloglow held those shares in the companies beneficially as their partnership property. For the purposes of the dispute between them, it does not matter if they were wrong, upon full legal analysis (I am not suggesting one way or the other whether they were) in taking up that position; that was the basis upon which the litigation was fought and also it was the basis upon which Mr Roth and Mr Xenos had come to the accord reached on 28 July 1999. If an agreement was reached between them at that meeting, otherwise enforceable at law, its enforceability would not be affected if they had not dealt with all the machinery necessary to carry the agreement to completion. (In any event it seems highly likely to me that they were quite right in their view that not only the property held by the companies but the shares in the companies themselves were, beneficially, partnership assets.)

75 It is also my opinion that what Mr Baloglow’s counsel agreed, at the beginning of the second day of the trial, was the position concerning Mr Xenos’s authority, for the purposes of the hearing, meant that, if an agreement, enforceable subject only to the question of authority, was arrived at at the meeting, Mr Xenos had quite sufficient authority to have entered into it on Mr Baloglow’s behalf.

76 The points raised for Mr Baloglow concerning parties all seemed to have as their premise the idea that some beneficial interest was outstanding in Mrs Baloglow or the children. Once it is recognised that at the trial both Mr Konstantinidis and Mr Baloglow were litigating on the basis that there were no such outstanding beneficial interests and that they as partners at least until the partnership was dissolved held the full beneficial interest in all assets including the shares of the companies, and that after dissolution they alone were interested in the proceeds of the winding up of the partnership, it becomes clear that there is nothing in the points relied on. It would have been convenient, but it was not a necessity, for the parties later nominated by Mr Roth in the draft deed in addition to Messrs Konstantinidis and Baloglow as the parties to that deed to have taken part in the agreement reached at the meeting of 28 July 1999.

77 In my opinion, the position acquiesced in by Mr Baloglow at the trial precludes him from any chance of success on his parties and authority points. In my opinion, the fundamental question in the appeal is whether Mr Xenos, who must be taken as having acted with full authority on Mr Baloglow’s behalf, entered into an agreement with Mr Roth acting on behalf of Mr Konstantinidis, which was enforceable at law.

78 This brings me to Mr Baloglow’s defences (a) and (c).

79 Mr Baloglow’s defences (a) and (c): (a) Was an immediately binding contract creating legal relations made at the meeting on 28 July 1999; (c) was the alleged agreement incomplete and too uncertain to be a legally binding contract. In dealing with these issues Bergin J made it clear she was to some extent influenced by what happened after the morning meeting of 28 July 1999. There is undoubtedly strong authority to the effect that what is said and done by parties after the alleged making of an agreement can be taken into account in deciding whether an agreement was made: see for example in this court ABC v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 and Bergin J was quite correct in recognising the authority of this decision. However, what is said and done by parties after the date of the alleged making of the agreement must be weighed in light of the circumstances obtaining at the time when the later things are said and done. For the reasons I have earlier attempted to explain I do not think that what happened after the telephone conversation between Mr Roth and Mr Xenos on 29 July 1999 can have much weight at all in deciding what it was that happened on 28 July 1999 at the meeting. The position is different in regard to the three letters of Mr Roth faxed to Mr Xenos in the afternoon of 28 July 1999, but for the reasons earlier given, those letters seem to me to be equivocal on the question whether what had been done in the morning of that day was consciously regarded by the negotiating solicitors as resulting in an enforceable agreement. It seems to me that in this case the question of enforceability must be decided by looking at what happened, what was said and what was written on the morning of 28 July 1999.

80 One fact that has influenced me, in addition to those already mentioned, in making my earlier observation that I doubt whether Mr Roth was explicitly turning his mind to the question of enforceability of what they were agreeing on in the meeting is that although he had Mr Xenos in effect looking over his shoulder as he wrote upon his six sheets and got his agreement with what was written on them, he did not ask Mr Xenos to sign them on his client’s behalf. Had he been at all concerned about the possibility of later argument about the matter I think he would have asked for some such written acknowledgement even if he doubted whether it were necessary.

164 In Adamson v Hayes (1973) 130 CLR 276 there was an agreement that mineral claims for which the parties had individually applied, being claims held by them for themselves and others, should be held for all of the parties in certain shares and dealt with under an arrangement with a third party. At first instance (Hayes v Adamson (1972) WAR 116) Burt J had said succinctly (at 118) that the agreement did not within the meaning of s 34 of the Property Law Act 1969 (WA), a provision equivalent to s 23C, “either create or convey in the sense of ‘assure’ an interest in land”. In the High Court different opinions were expressed on the application of s 34.

165 Barwick CJ considered that there was neither creation nor disposal of an interest in land within s 34(1)(a), because it was not intended to change the legal or beneficial ownership of the claims until the arrangements with the third party were implemented – there were only (at 288) “mutual promises to join in any necessary instruments or procedures required to implement a transfer of the appellants’ interest as a percentage of all the claims regarded as a unit to the partnership of the respondents when formed”. Walsh J thought that there was creation and disposal of an interest in land, and Stephen J thought there was creation of an interest in land. The different opinions were was because of a difference in the view of the operation of the agreement. Walsh J said specifically (at 296) that the relevant part of the agreement was intended to take effect immediately and “did not consist of mutual promises that at some subsequent time the claims would be held in the specified manner” and (at 297) that the rights created by the agreement were not “mere contractual rights”. Stephen J thought that the agreement operated immediately to require that the beneficial interests in the claims be held differently from before, and said (at 317-8) that the agreement “declar[ed] trusts respecting each of the mineral claims, thereby creating equitable interests”.

166 Stephen J also regarded the agreement as caught by s 34(1)(b) as an immediately operative declaration of trust. The other members of the Court, Menzies and Gibbs JJ, were disposed to see the pooling arrangement as a declaration of trust caught by s 34(1)(b). Gibbs J considered s 34(1)(a) only for its application to the agreement so far as the agreement granted options: I will shortly come to what his Honour said. No doubt because any trust was thought to be express, neither Walsh J nor Stephen J referred to s 34(2).

167 Subject to what Gibbs J said, it seems to me that these reasons are consistent with and lend some support to the analysis earlier set out. A distinction was evident between an agreement to assure property in the future and the future assurance. The agreement created or disposed of equitable interests in the claims if the parties agreed immediately to hold their beneficial interests for different persons from before. Agreement only to alter the beneficial interests at a future time did not create or dispose of equitable interests.

168 Gibbs J said (at 304) -

“It is true that it would appear that if s. 34 (1) (a) is applied to equitable interests, it will embrace within its terms many contractual provisions that would also fall within s 4 of the Statute of Frauds. It has been said that the latter section ‘refers to agreements not operating as an immediate transfer or conveyance of an estate or interest in land, but as contracts to make or execute a grant or transfer, or conveyance, at some subsequent period’: Agnew, Treatise on the Statute of Frauds (1876), at p 138. Section 34 (1)(a) may now refer both to agreements that operate as immediate transfers and to contracts to transfer in future and may thus cover much of the field already covered by the relevant part of s 4. However, s 34 cannot be regarded as merely reproducing the effect of those provisions of the Statute of Frauds which it replaces (see

[[1960] A.C. 1] and in my opinion the provisions of s 34 (1)(a) must be given their natural meaning, without any inhibition that may be caused by a consideration of their history. It therefore follows that the provisions of the agreement providing for the grant of the options will fall within s 34 (1)(a) and, being by parol, will be ineffective to create or dispose of any interest in the claims, if interests in claims are interests in land.”

169 His Honour later said (at 305), in the context of whether the mineral claims were land, that “Although the application of s 34 of the Property Law Act to interests to which s 4 of the Statute of Frauds does not extend may bring about an anomalous result, it does not seem to me to lead to such absurdity as to justify a conclusion that the legislature could not have intended it”.

170 As I have indicated, his Honour’s observations as to contracts to transfer in the future were in connection with the grant of options. His Honour saw the grant of options as outside s 34(1)(c) because the interests were newly created and outside s 34(1)(b) because there was no declaration of trust, but as caught by s 34(1)(a) because the grant of an option created an equitable interest “measured by what a court of equity would decree in an action for specific performance” (Commissioner of Taxes (Queensland) v Camphin (1937) 57 CLR 127 at 133, cited by his Honour at 303).

171 The same divergence on the effect of the agreement was apparent in the considerations of the disposition of an equitable interest subsisting at the time of the disposition. As I have indicated, Barwick CJ considered that the agreement did not transfer anything, Menzies J, who had put s 34(1)(a) aside as concerned only with legal interests, considered that there was the disposition of an equitable interest within s 34(1)(c) because the effect of the agreement was to alter equitable rights in the claims, and his Honour stated (at 293) that the relevant provision “was intended to operate immediately”. Walsh J did not refer to s 34(1)(c). Gibbs J considered that it did not apply because any equitable interests did not exist until the agreement created them, thereby looking again at the immediate effect of the agreement. Stephen J said only that it may be possible to see the disposal of an existing equitable interest, his citation (at 319) from Grey v Inland Revenue Commissioners (1960) AC 1 at 16 showing that he meant as an aspect of the declarations of trust which he considered were the effect of the agreement.

172 Still subject to what Gibbs J said, it seems to me that the reasons are again consistent with and lend some support to the analysis earlier set out. The agreement disposed of an existing equitable interest if the parties agreed immediately to hold their beneficial interests for different persons from before. Agreement only to do so at a future time did not dispose of an existing equitable interest.

173 A series of cases in Western Australia followed, with varying approaches.

174 In Parker v Manessis (1974) WAR 54 the agreement, a contract for sale of land, was signed by only one of the vendors. It was held that that vendor signed as agent for the other vendor, so that the requirements of the equivalent of s 54A were fulfilled. But the purchasers’ suit for specific performance failed, because Virtue SPJ considered that s 34 applied to the contract. His Honour said (at 59) -

“The question of the applicability of s 34(1) of the Act was discussed in

[1972] WAR 116, and on appeal to the High Court under the name of

(1973) 47 ALJR 201: [1972-73] ALR 1224. This case concerned the enforceability by way of specific performance of oral agreement to give options to acquire a share in mining tenements. In the Supreme Court Burt J held that s 34(1) was not applicable in that the oral agreement did not within the meaning of that subsection either create or convey in the sense of ‘assure’ an interest in land and for that and other reasons he held that the agreement was enforceable, by specific performance.

The High Court however by a majority of four to one disagreed with the conclusions arrived at by the learned Judge and held that s 34(1) applied to the agreement and precluded its enforcement by specific performance.

I conclude accordingly that the proper view is that s 34(1) applies to the agreement the subject of this action … “

175 With respect, this did not appear to involve close scrutiny of the facts and reasoning in the High Court. In Monte v Buongiorno (1978) WAR 49 the facts were essentially the same as in Parker v Manessis, and Wallace J came to a different result. His Honour said (at 51-2) -

“Section 34(1)(a) is in fact based upon s 3 of the Statute of Frauds. It refers to such final documentation as a transfer or conveyance in the sense of assurance “of an interest in land” – see Burt J, as he then was, in

[1972] WAR 116 at 118. The creation of equitable rights by the execution of the Offer and Acceptance is unaffected by the section – see 34(2). This opinion must lead me to a somewhat more detailed consideration of the conclusions reached by the various members of the High Court in

[1972-73] ALR 1224; 130 CLR 276, than that given by Virtue SPJ in

[1974] WAR 54, with whom I regret to find myself in disagreement. Virtue SPJ held that he was bound by

which ‘concerned the enforceability by way of specific performance of oral agreement to give options to acquire a share in mining tenements’.

What appears to me clear from my reading of the judgments of their Honours the justices of the High Court is that they were at least substantially in agreement that the document with which they were dealing was no more than an agreement to pool the parties’ various claims – a pooling agreement – and not an ‘oral agreement to give options’ as Virtue SPJ so reasoned: see Menzies J (130 CLR) at 292, Walsh J at 296 and Stephen J at 309, and again, at 319: ‘It is sufficient for present purposes that I should conclude that the agreement of 3 December operated so to create new equitable interests in the claims and thus was within pars 9(a) and (b) of s 34(1).’ Indeed, his Honour went to some pains to point out that the pooling agreement represented the parties’ final assurance of interests. For these reasons I am satisfied that Virtue SPJ was wrong and I am therefore bound to disagree with the conclusion he reached in

: … “

176 Wallace J regarded the provision as referring to “such final documentation as a transfer or conveyance in the sense of assurance ‘of an interest in land’”. He referred also to s 34(2) as material to his consideration. He emphasised that Stephen J had regarded the agreement as representing the parties’ final assurance of interests. The basis for his decision, it seems to me, is that the interest in land created or disposed of had to be something other than the equitable rights which came about upon a contract for the sale of land, although it is not entirely clear whether that was because s 34(2) took those equitable rights out of the provision or because, being less than the rights on the final assurance, they never came within it.

177 Then in Redden v Wilks (1979) WAR 161 Burt CJ preferred the view of Virtue SPJ to that of Wallace J. Again it was a contract for the sale of land, this time without any signed contract but arguably with a signed note or memorandum of the agreement or with acts of part performance. The issue as presented by the purchaser’s pleading was whether s 34(1)(a) was confined to the creation or disposal of legal interests and did not extend to equitable interests. His Honour said (at 164-5) -

“In

[1972] WAR 116 at 118, I was firmly of the opinion that s 34(1)(a) of the Property Law Act only applied to legal interests. But that view was, I think, clearly held by the majority of the High Court on Appeal –

(1973) 130 CLR 276 – to be erroneous. As I read the reasons of the majority in that case, only Menzies J at 292 of the report, thought it to be right: see Walsh J at 297, Gibbs J at 304, and Stephen J at 319-20. As Gibbs J observed in that case, there is, in the result, considerable overlap between s 34 of the Property Law Act and s 4 of the Statute of Frauds.

In my opinion the decision of the High Court in

requires one to hold, as I do, that a verbal contract for the sale of land or for the disposition of valuable consideration of an interest in land as an agreement which creates an interest in land within the meaning of s 34(1)(a) of the Property Law Act and accordingly, ‘subject to the provisions hereinafter contained in this Act with respect to the creation of interests in land by parol’ such an agreement is ineffective and cannot be specifically enforced. This, I think, would be so even if there existed a good memorandum in writing of the verbal agreement, because it is the verbal agreement which creates the interest and not the memorandum. Hence in a suit for specific performance it is no answer to the plea of s 34(1)(a) of the Property Law Act to plead, as the plaintiff here does, the existence of a memorandum. Of the two decisions of this court, which are in conflict, I would follow the decision of Virtue J in

, supra.”

178 The issue as presented may not adequately have reflected the possible application of s 34. Even if s 34(1)(a) extended to equitable interests, were the equitable rights which came about upon a contract for the sale of land an equitable interest within the provision? Nonetheless, his Honour’s decision included that they were.

(1985) WAR 19 was concerned with a contract to grant a lease. Rowland J said (at 36) -

“The starting point for a consideration of s 34(1)(a) of the

is to note the divergence of views between single judges of this Court as to whether the section affects equitable interests in land. I am inclined to agree with the reasons for judgment of Burt CJ in

[1979] WAR 161 wherein he says that the section does affect equitable as well as legal interests in land. He indicated that the debate is foreclosed by the majority views of Walsh J at 297, Gibbs J (as he then was) at 304 and Stephen J at 319-320 in

(1973) 130 CLR 276. It has been suggested that as

was dealing with the immediate transfer of a pooling arrangement there is still room to retreat to the rather more traditional view of s 34: see notes by R P Austin (1974) 48 ALR 322 and Editorial comment in 1979-80 Australian and New Zealand Conveyancing Reports 357. I believe I should follow the dicta of the majority of the High Court.”

180 This consideration, with respect, did not address the difference between whether the provision “affects equitable interests in land” and whether the equitable rights which come about upon a contract for the sale of land, something other than those arising “with the immediate transfer of a pooling arrangement”, are relevantly an equitable interest. As I have sought to show, I do not think what was said by Walsh and Stephen JJ in Adamson v Hayes foreclosed the debate: their Honours did not address the latter question. Only the reasons of Gibbs J addressed that question.

181 On appeal in the same case Ratto v Trifid Pty Ltd (1985) 56 LGRA 22 only Brinsden J dealt with this matter, in an obiter dictum. His Honour said (at 43) -

“Of course, until the agreement resulted in the execution and extension of the lease Trifid only had an equitable estate in the land to the extent of the extension. It has been held by Burt CJ in

(1979) WAR 161 that s 34 does affect equitable as well as legal interests in land relying on the dictum of Gibbs J, as he then was (at 304) and Stephen J (at 319-20) in

(1973) 130 CLR 276. I propose to follow

.”

182 There was a hint of what I have suggested is the true issue in Parker v Ledsham (1988) WAR 32. A beneficiary directed that her trustee pay money to third parties, but died before the payments were made. The question was whether the gift of money was effective. Rowland J recorded (at 36) that counsel for the third parties “rejects any suggestion that the instruction given by [the beneficiary] to [the trustee] amounted to an immediate intention to assign her interest to the named persons”, adding “Had he not done so, he may have been faced with the difficulty of the assignment being void as contrary to s 34(1)(c) …”.

183 As a matter of authority, I do not think the analysis earlier in these reasons is precluded. Adamson v Hayes is not against it, but tends to support it, save for what was said by Gibbs J. The abandonment in the later Western Australian cases of the earlier view that s 34 does not apply when there is no more than an executory contract for sale was, I suggest, on a less than compelling basis. I consider that it is open to adopt the analysis.

184 The cases to which I have referred have generated considerable comment, see for example Austin, (1974) 48 ALJ 322; Lang (1980) ANZ Conv R 357; Seddon, (1987) 61 ALJ 406; Everett, (1987) 17 WALR 301. There has been no support for the application of s 23C to an executory contract for sale.

185 It has been held that the interest created by a declaration of trust of land is not an interest in land within s 23C(1)(a), see Secretary, Department of Social Security v James (1990) 85 ALR 615 at 621-2; Hagan v Waterhouse (1991) 34 NSWLR 308 at 385-6. The reasons for that do not readily transpose to the present situation, but it shows that the nature of what in other contexts would be regarded as an interest in land bears upon whether it is an interest in land within s 23C(1)(a). What is the nature of the interest created under an executory contract for sale for land?

186 If the contract is susceptible of specific performance the purchaser is said to have an equitable interest. But it is an interest of a special nature. To repeat the words from Commissioner of Taxes (Queensland) v Camphin at 133, it is “measured by what a court of equity would decree in an action for specific performance”. If specific performance will not be decreed, there is no equitable interest (Brown v Heffer (1996) 116 CLR 344 at 351). And, as is said by the learned authors of Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3rd ed (1992) at [609] -

“The position of the assignee after contract, but before the consideration is paid or executed, is rather more obscure. It is said he has, even then, an equitable interest in the property, and that the assignor holds the property as constructive trustee for the assignee. But statements of this kind must immediately be qualified: the equitable interest, or trust, can arise only if the contract is one of a kind of which specific performance might be ordered (the interest of the assignee is ‘an interest commensurate with the relief which equity would give by way of specific performance’:

[1915] AC 318 at 326 per Lord Parker of Waddington); it is defeasible, because the contract may be avoided or rescinded; it is conditional, at least upon performance by the assignee of his obligation to pay the price; the trust is unusual, in that it is difficult, if not impossible, to point to any duties of a fiduciary character which the assignor owes to the assignee. It is not surprising that judges have taken refuge in phrases such as ‘trustee

’ by way of an attempt (not a very productive attempt, perhaps) to describe it … ”

187 If the equitable interest is measured also by other equitable protection of rights acquired under the contract (see Hewett v Court (1983) 149 CLR 639 at 665-6; Legione v Hateley (1983) 152 CLR 406 at 446; Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 252-3; Stern v McArthur (1988) 165 CLR 489 at 522-3; but cf Meagher, (1999) 15 JCL 1), then the special nature of the interest is emphasised.

188 There is a difficulty in regarding the equitable rights of the purchaser under an executory contract for sale of land as an equitable interest within s 23C(1)(a). The very existence of the equitable interest depends on equity enforcing or perhaps otherwise protecting the purchaser’s contractual rights. How can equity enforce or otherwise protect the contractual rights if, by force of the provision, the interest to which equity thereby gives life must be stillborn? At the least, the circularity should give pause before bringing executory contracts for sale of land within s 23C(1)(a).

189 The same basis for the equitable interest underlies the suggestion that the rights are not caught by s 23(1)(a) because created by operation of law, and also the suggestion that the rights are not caught because created by the operation of a constructive trust. In England the Court of Appeal has now endorsed the approach that the equitable interest created under a specifically enforceable agreement to assign an interest in property is created by the operation of an implied or constructive trust, see Neville v Wilson (1997) Ch 144 at 155-8, although treating the interest as a trust interest is open to the criticisms fully developed in Waters, The Constructive Trust, Ch II. The more fundamental issue is whether the equitable rights are an equitable interest for the purposes of s 23C(1)(a) at all.

190 For that one returns to the distinction between an agreement to assure property in the future and the future assurance, a distinction of significance to disposal of an interest in land and disposal of a subsisting equitable interest as well as creation of an equitable interest in land. The purchaser under the agreement to assure can sue at law for damages for breach of contract although the contract is not in writing (subject to s 54A where it applies), because s 23C “is essentially directed to creation of interests in land” and “is not directed to agreements as such” (Abjornsen v Urban Newspapers Ltd (1989) WAR 191 at 200 per Kennedy J). When property rights are involved, s 23C applies at the time of assurance. It may be that property rights arise without an assurance, because the purchaser pays the purchase price and the vendor holds the property as bare trustee for the purchaser. In that situation there will be no requirement of writing because s 23C(2) will have effect. If writing is not necessary, why should it be necessary for the prior stage when the purchaser has the lesser rights, of the special nature earlier described?

191 It would be odd if s 23C were given an application such that it should. The preferable reason for concluding that it should not, in my view, is that s 23C does not apply at all – whether as to creation or as to disposal of an interest – if there is no more than an agreement to assure property in the future. Save by the equitable protection, there is neither creation nor disposal of an interest, and the purchaser’s equitable rights are not an equitable interest for the purposes of s 23C(1)(a) or 23C(1)(c). It follows that there can not be the creation of an interest in land within s 23C(1)(a), and that it is not necessary to debate whether there is a carving out of an interest so that there can be a disposal of an interest in land or of an equitable interest, because there can not be the disposal of an interest in land or of an equitable interest.

192 It will always come down to the agreement, hence the differences in view in Adamson v Hayes, but in my opinion if there is no more than an agreement to assure property s 23C is not attracted. So far as Gibbs J was of a different view, I must respectfully disagree. I am conscious that this approach was not taken in Neville v Wilson or the earlier English cases to which reference was made in that case: for example in Neville v Wilson their Lordships appear to have regarded an agreement to assign an equitable interest as a disposition of that interest within the equivalent to s 23C(1)(c) (see at 155). Perhaps it was thought that the agreement was intended to have immediate dispositive effect. The contract in the present case was not.

193 It follows that the contract is not unenforceable because not in writing and signed by Mr Baloglow or his agent lawfully authorised in writing. So far as Mr Baloglow agreed to transfer or cause the children to transfer their interests in 58 Whistler Street, Manly to Mr Konstantinidis, there was not the creation or disposition of an interest in land or the disposition of an existing equitable interest within s 23C(1)(a) or s 23C(1)(c). There was not a declaration of trust respecting any of the land.

194 In my opinion, the appeal should be dismissed with costs.

**********

CITATION:	Baloglow v Konstanidis & Ors [2001] NSWCA 451
FILE NUMBER(S):	CA 40092/01
HEARING DATE(S):	17 July 2001
JUDGMENT DATE:	6 December 2001
PARTIES :	Theo Baloglow v Simon Konstantinidis; Larripalm Pty Ltd (Receiver & Manager Appointed); Carlisle Developments Pty Ltd (Receiver & Manager Appointed); Ricvale Holdings Pty Ltd (Receiver & Manager Appointed; Balkon Pty Ltd (Receiver & Manager Appointed)
JUDGMENT OF:	Mason P at 1; Priestley JA at 4; Giles JA at 129

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 4656/99
LOWER COURT JUDICIAL OFFICER :	Bergin J

COUNSEL:	Appellant - F.M. Douglas QC / T.G.R. Parker Respondent (1) - B. Oslington QC / G. Segal
SOLICITORS:	Appellant - Gordon & Johnstone Respondent (1) - Charles G. Roth Respondents (2, 3, 4, 5) - Carneys
CATCHWORDS:	Specific performance - partnership - winding up
LEGISLATION CITED:	Conveyancing Act 1919
CASES CITED:	ABC v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 Abjornsen v Urban Newspapers Ltd (1989) WAR 191 Adamson v Hayes (1973) 130 CLR 236 Brown v Heffer (1996) 116 CLR 344 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 Chan v Cresdon Pty Ltd (1989) 168 CLR 242 Commissioner of Taxes (Queensland) v Camphin (1937) 57 CLR 127 Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 97578 Grey v Inland Revenue Commissioners (1960) AC 1 Hagan v Waterhouse (1991) 34 NSWLR 308 Hewitt v Court (1983) 149 CLR 639 Leeman v Stocks [1951] 1 Ch 941 Masters v Cameron (1954) 91 CLR 343 Monte v Buongiorno (1978) WAR 49 Neville v Wilson [1997] Ch 144 Oughtred v Inland Revenue Commissioners [1960] AC 206 Parker v Manessis (1974) WAR 54 Perri v Coolangata Investments Pty Ltd (1982) 149 CLR 537 Pirie v Saunders (1960) 104 CLR 149 Ratto v Trifid Pty Ltd (1985) 56 LGRA 22 Redden v Wilks (1979) WAR 161 Secretary, Department of Social Security v James (1990) 85 ALR 615 Stern v McArthur (1988) 165 CLR 489 Tonitto v Bassal (1992) 28 NSWLR 564 Trifid Pty Ltd v Ratto (1985) WAR 19 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 York Air Conditioning and Refrigeration (A'Asia) Pty Ltd v The Commonwealth (1949) 80 CLR 11
DECISION:	Appeal dismissed with costs.