Brannigan v Smith - [2017] NSWSC 1201

Supreme Court

New South Wales

Medium Neutral Citation: Brannigan v Smith [2017] NSWSC 1201
Hearing dates: 28 – 29 August 2017
Date of orders: 08 September 2017
Decision date: 08 September 2017
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiff validly exercised option to purchase.

Catchwords:
LAND LAW – conveyancing – options – option to purchase – date of exchange – defendants claim exchange of counterparts occurred using email copy of execution page – plaintiff claims exchange occurred using original counterparts at later time – whether agreed that exchange would occur using email copy of signature page – date of exchange held to be date of exchange of original counterparts
LAND LAW – conveyancing – service of notices – whether service on agent valid – whether service by facsimile effective – whether Conveyancing Act 1919 (NSW), s 170 facultative or mandatory
Legislation Cited: Conveyancing Act 1919 (NSW), ss 66ZG, 170
Cases Cited: Bressan v Squires [1974] 2 NSWLR 460
Ex parte Dally-Watkins; Re Wilson (1955) 72 WN (NSW) 454
FAI General Insurance Company Ltd (in liquidation) v Parras (2002) 55 NSWLR 498; [2002] NSWCA 334
Jones v Dunkel (1959) 101 CLR 298
Mineaplenty Pty Ltd v Trek 31 Pty Ltd (2006) 17 BPR 32,645; [2006] NSWSC 1203
Sindel v Georgiou (1984) 154 CLR 661
Stonewall Hotel Pty Ltd v Papantoniou [2017] NSWSC 964
Young v Lamb (2001) 10 BPR 18,553; [2001] NSWCA 225
Category: Principal judgment
Parties: Laura Diane Brannigan (Plaintiff)
Adam Douglas Smith (First Defendant)
Heath David Jamieson (Second Defendant)
Representation:
Counsel:
Mr CJM Palmer (Plaintiff)
Mr P Kondich (Defendants)
Solicitors:
Cordato Partners Lawyers (Plaintiff)
Safe Harbour Lawyers (Defendants)

File Number(s): 2016/257193
Publication restriction: None

Judgment

Introduction

These proceedings concern an agreement containing an option to purchase granted to the plaintiff by the defendants in respect of a one bedroom unit in Arcadia Street, Coogee.
The agreement provides for the option to be exercised by the service on the Grantor of a Notice of Intent to Purchase executed by the Grantee (or their assignee or nominee), at any time from 42 days after the date of the agreement until 5pm on the third anniversary of the date of the agreement. The plaintiff claims to have exercised the option on 2 June 2016.
Whilst it is common ground that a valid and binding option was entered into, there is a dispute about when that occurred, and thus the date of the agreement. The plaintiff contends that the option was entered into on about 7 June 2013. The defendants contend that it was entered into on 28 May 2013. On that basis, they contend that the option had expired before the plaintiff sought to exercise it. The plaintiff maintains an alternative claim that the defendants are estopped, by their conduct, from asserting that the plaintiff was not entitled to exercise the option after 28 May 2016.
There is also a dispute concerning service of the notice of exercise of option. The defendants contend that the plaintiff failed to properly serve…

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 Brannigan v Smith

Details

AGLC: Brannigan v Smith [2017] NSWSC 1201
Case: [2017] NSWSC 1201
Decision Date: 08 September 2017

CaseChat Overview and Summary

The matter before the court was a dispute between Brannigan and Smith regarding the date of exchange of counterparts of an option to purchase land and the validity of service of notices under the Conveyancing Act 1919 (NSW). Smith claimed that the exchange of counterparts occurred via email, while Brannigan argued that the exchange occurred at a later time using the original counterparts. Additionally, Brannigan contended that the service of notices on Smith's agent was invalid, and that service by facsimile was not effective. The court was required to determine the date of exchange of the option to purchase and whether the service of notices was valid.

The court held that the date of exchange of the option to purchase was the date when the original counterparts were exchanged, not the date when the email copy of the execution page was sent. The court found that there was no agreement between the parties that the exchange would occur using an email copy of the signature page. The court also held that service of notices on an agent is valid, and that service by facsimile is effective under section 170 of the Conveyancing Act 1919 (NSW), which is not mandatory but facultative.

As a result, the court found in favour of Brannigan on the issue of the date of exchange of the option to purchase. The court also found that the service of notices on Smith's agent was valid and that service by facsimile was effective. The court made orders accordingly, and Smith was ordered to pay Brannigan's costs of the proceeding.

Orders