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Brady v Brady

Brady v Brady

Case [2025] NSWSC 217 19 March 2025

Contract Formation

Unconscionable Conduct

Specific Performance

Contract Law

Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Brady v Brady [2025] NSWSC 217
Hearing dates: 12 March 2025
Date of orders: 19 March 2025
Decision date: 19 March 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
See paragraph [83]

Catchwords:
CONTRACT – loan contract involving sale of land – oral contract – part performance of an oral contract – no question of principle
EQUITY – Equitable remedies – specific performance – whether purchaser ready, willing and able to complete – no question of principle

Legislation Cited:
Conveyancing Act 1919 (NSW) ss 23E(d) and 54A(2)
Uniform Civil Procedure Rules 2005 (NSW) r 14.26

Cases Cited:
Kazal v Thunder Studios Inc [2023] FCAFC 174
Macdonald v ASIC (2007) 73 NSWLR 612
Phung v Phung [2019] NSW 117
Pipikos v Tayans [2018] HCA 39
Quality Bakers Australia Pty Ltd v Yassim Modern BakeryPty Ltd [2007] NSWSC 804
Sneddon v New South Wales [2012] NSWCA 351
Tran v Bakour [2025] NSWSC 101

Texts Cited:
Nil

Category: Principal judgment
Parties: Stephanie Ruth Brady (plaintiff)
Andrew Scott Brady (defendant)
Representation:
Counsel:
M Pringle (plaintiff)
Solicitors:
Kennedy & Cooke (plaintiff)
Self-represented (defendant)

File Number(s): 2024/00097906
Publication restriction: Nil

JUDGMENT

Introduction

The plaintiff and defendant are sister and brother respectively. They are presently the registered proprietors as tenants in common in equal shares of a property situated at and known as XX South Street, Ulladulla, New South Wales, 2539, comprised in folio identifier XX/XXXXX (Property).
By her statement of claim filed 14 March 2024, the plaintiff seeks in effect, an order that the defendant transfer to the plaintiff his one half share of the Property. Underlying the orders sought is a loan contract that the plaintiff contends was entered into with the defendant whereby upon repayment of the loan by the plaintiff to the defendant, the defendant would transfer his one half share to the plaintiff.
At no stage has the defendant taken an active role in the proceedings. I set out the detailed procedural history of the proceedings below.
On 12 March 2025, the matter was heard on a final basis. Ms M Pringle appeared for the plaintiff. There was no appearance for the defendant, he having emailed my chambers on the morning of 12 March 2025 indicating that he would not participate in the hearing “in any form” because of apparent medical issues. Given the history of the matter, as set out below, I determined to proceed with the hearing.
For the reasons set out below, I am satisfied that the plaintiff is entitled to succeed and to have orders made to allow the one half interest of the defendant in the Property to be transferred to the plaintiff in exchange for the plaintiff paying to the defendant the amount remaining owing under the loan.

Procedural History

The procedural history of the proceedings is as follows.
The proceedings were commenced by statement of claim filed by the plaintiff on 14 March 2024. The statement of claim was served on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brady v Brady

Details

AGLC: Brady v Brady [2025] NSWSC 217
Case: [2025] NSWSC 217
Decision Date: 19 March 2025

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Brady v Brady was heard. The case involved a dispute over an oral contract for the sale of land between two family members. The central issue was whether the plaintiff, as the purchaser, had demonstrated sufficient part performance of the oral contract to warrant specific performance by the defendant, the seller. The court was also tasked with determining whether the plaintiff was ready, willing, and able to complete the transaction, which was a necessary condition for the grant of specific performance.

The court examined the evidence to ascertain whether the plaintiff had taken significant steps in reliance on the oral agreement, such as making payments or incurring expenses related to the land. Additionally, the court had to consider whether the plaintiff had acted in a way that demonstrated a clear intention to be bound by the terms of the oral contract. The court also assessed whether the plaintiff was in a position to complete the purchase by examining their financial situation and willingness to proceed with the transaction.

In its reasoning, the court held that the plaintiff had indeed demonstrated part performance of the oral contract through the actions taken, which were consistent with the terms of the alleged agreement. The court found that these actions were sufficient to establish the existence of the oral contract. Furthermore, the court was satisfied that the plaintiff was ready, willing, and able to complete the purchase, as evidenced by their financial preparedness and intent to proceed. Consequently, the court granted the plaintiff's application for specific performance of the oral contract, ordering the defendant to complete the sale of the land as agreed.

The court's final order required the defendant to transfer the property to the plaintiff in accordance with the terms of the oral contract, thereby ensuring that the plaintiff could enforce the agreement through specific performance. The court emphasised that the principles applied in this case were straightforward and did not introduce any novel legal concepts.

Orders