Bruce Percy Hocking v Sophia Lambiris aka Wilkie - [2009] NSWSC 382

No judgment structure available for this case.

CITATION: Bruce Percy Hocking v Sophia Lambiris aka Wilkie [2009] NSWSC 382

HEARING DATE(S): 16, 17 and 19 March 2009

JUDGMENT DATE :
14 May 2009

JUDGMENT OF: Bergin CJ in Eq

DECISION: Plaintiff's claims dismissed

CATCHWORDS: [SPECIFIC PERFORMANCE] - Whether plaintiff has established partnership agreement - whether specific performance should be ordered [TRUST] - Whether express trust - whether declaration should be made - whether Trustee should be appointed for sale of Land

LEGISLATION CITED: Conveyancing Act (1919) NSW

CASES CITED: Baloglow v Konstantinidis & Ors (2001) 11 BPR 20,721
Jones v Dunkel (1959) 101 CLR 298
Tooth v Fleming (1859) 2 Legge 1152

PARTIES: Bruce Percy Hocking (Plaintiff)
Sophia Lambiris aka Wilkie (Defendant)

FILE NUMBER(S): SC 2225/08

COUNSEL: L Goodchild (Plaintiff)
M Brown (Solicitor) (Defendant)

SOLICITORS: Dennis & Co (Plaintiff)
Browns The Family Lawyers (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN CJ in EQ

14 MAY 2009

2225/08 BRUCE PERCY HOCKING v SOPHIA LAMBIRIS aka WILKIE

JUDGMENT

1 The plaintiff, Bruce Percy Hocking, seeks an order for specific performance of an agreement, pleaded as a Partnership Agreement, alleged to have been reached with the defendant, Sophia Lambiris, also known as Sophia Wilkie, and her son Todd Wilkie, in about July or August 2003.

2 On 11 July 2003 the defendant exchanged contracts to purchase land consisting of a number of lots at Riverstone, New South Wales for $90,000, referred to in the evidence as the Marsden Park land (the Land). The defendant paid a deposit of $4,500 and in August 2003 the plaintiff advanced to the defendant the balance of the purchase price and associated fees and duties of $86,629.32. The terms of the agreement that was reached in respect of that advance are in dispute.

3 The plaintiff also seeks a declaration that the defendant holds the Land “upon an express trust for the Partnership” and an order for the appointment of a Trustee for the sale of the Land and for division of “the net proceeds in terms of the said Partnership agreement”.

4 The matter was heard on 16, 17 and 19 March 2009 when Ms L Goodchild, of counsel, appeared for the plaintiff and Mr M Brown, solicitor, appeared for the defendant. After the hearing concluded a timetable was set for the filing and service of written submissions. That timetable provided for the plaintiff’s submissions to be filed and served by 27 March 2009 and the defendant’s submissions in reply to be filed and served by 7 April 2009 from which date my judgment was reserved. Unfortunately the plaintiff’s solicitors did not serve the submissions on the defendant’s solicitors and the defendant’s final written submissions were not filed until 11 May 2009.

Background

5 The plaintiff was admitted as a solicitor on 20 March 1953 and practised until 1968. Between 1968 and 1987 he was involved in various commercial ventures in Australia and in the USA and then returned to the practice of the law in Australia.

6 A peculiar feature of this case is that although the parties have obviously known each other for a long time, there is no evidence of the genesis of their relationship and the evidence of their financial dealings over the years has had to be ascertained in part, from non-contemporaneous documents. It is apparent that the plaintiff has been in the habit of lending money to the defendant over the years and that at some stage, including in 2003, the defendant was an undischarged bankrupt. They appear to have had numerous business dealings until their relationship appeared to sour in 2005 when the defendant made a complaint to the Law Society of New South Wales in respect of the plaintiff’s professional conduct.

7 The defendant claimed that she and the plaintiff agreed that they would establish a partnership to operate a business known as Camden Valley Nursery in which the plaintiff would have a 26% interest and defendant would have a 74% interest. The defendant also claimed that the plaintiff informed her that they did not need any “paper work” because the plaintiff trusted her. The plaintiff paid $3,000 to the defendant towards the purchase of some trees and contributed further moneys; $5,000 in May 2001 and approximately $10,000 for olive trees in November 2002. Camden Valley Wholesale Nursery Pty Ltd was established on 9 December 2002. The company search identifies the defendant as a director and the plaintiff as the secretary with the plaintiff holding 26 shares in his own name and Telesound Pty Limited, a company controlled by the plaintiff, holding the balance of the shares. This seems consistent with the defendant’s affidavit evidence that the plaintiff advised her that he would put her 74% share in a family company that he owned, that would hold the shares in a discretionary trust for her.

The Alleged Agreement

8 The defendant exchanged contracts on the Land on 11 July 2003 for a purchase price of $90,000 paying $4,500 as a deposit. The plaintiff claimed that the defendant and her son, Todd Wilkie, attended upon him at his office in North Sydney in early August 2003. Although the defendant claimed that her son was not present at this particular meeting, it is common ground that the defendant advised the plaintiff that she had entered into the contracts for the purchase of the Land but that she did not have the balance of the purchase price. It is also common ground that the defendant asked the plaintiff to assist her with the finance to complete the purchase. The plaintiff claimed that when the defendant asked him to assist her with the finance she informed him that, “we can make a good profit very quickly”. The plaintiff’s affidavit evidence was that he said to the defendant and her son:

9 The plaintiff claimed that the defendant said, “Ok. I’m happy with that arrangement” and that he said he would hold the title deeds but that he would not put a mortgage on the title because the plaintiff’s son was going to sell the Land quickly and the plaintiff and the defendant would assist him with those sales.

10 The plaintiff claimed that he asked the defendant whether she wanted him to act on the purchase and that she advised him that she did not want him to act because she already had a solicitor, Mervyn Cathers, acting for her. The defendant’s evidence was that she asked the plaintiff to act as her solicitor on the purchase and that he uplifted the file from her previous solicitor, Mr Cathers.

11 The defendant denied that she had informed the plaintiff that the Land would be placed on the market immediately. The defendant also denied that the plaintiff said that any remaining profit would be shared equally between the plaintiff, herself and her son however, the defendant claimed that she did agree with the plaintiff that another parcel of land at Portland, New South Wales (the Portland property) would be placed on the market immediately and that moneys from that sale would be used to repay the plaintiff.

12 The defendant made a statutory declaration on 4 August 2005 apparently in support of her complaint to the Law Society against the plaintiff. Paragraphs 20 and 21 of that Statutory Declaration are in evidence. They are as follows:

20. At the time of the advance of that money Mr Hocking said “I will put the money in to complete this purchase. When the properties are sold I will get 26% of the profit” or similar. I said “OK. I’m happy with that”. Mr Hocking said “I will hold the deeds. I won’t put a mortgage on it since it is like a partnership deal”.

13 The defendant was shown this statutory declaration in cross-examination and accepted that her signature appeared on it. She accepted that the plaintiff was to receive 26% of the profit from the sale of the Land and she denied that 33%, or one third, was ever discussed. She claimed that her son “was not involved in any of this” and that she went to the plaintiff’s office alone, not with her son.

14 The defendant and her son had decided to purchase some relocatable houses to place on the Land to make it “more attractive to any purchaser”. The plaintiff claimed that a further meeting with the defendant and her son took place at his office on 14 August 2003 some days after the meeting at which the alleged Partnership Agreement was reached. The plaintiff claimed that at this later meeting there was discussion in relation to those houses.

15 The defendant gave evidence that she had owned a residential property at Portland, New South Wales since 1975, and had entered into a “terms contract” with a prospective purchaser in about 1979. It appears that the contract was not completed and the defendant agreed with the prospective purchaser that she could reside in the property until her death. After the death of that person, the defendant instructed the plaintiff to act on the sale of the Portland property.

16 There is a copy letter in evidence dated 22 July 2003 purportedly written by the plaintiff to the solicitor of the purchaser of the Portland property. The letter is in the following rather peculiar terms:

Our client requires a Cooling-off Certificate excluding the cooling-off period.

17 In cross-examination the plaintiff initially agreed that he probably wrote the letter in his capacity as a solicitor (tr 16). He also said he could not remember whether he wrote it in his capacity as a solicitor. He then claimed that he did not write it as a solicitor but was helping a friend who was a conveyancer and was quite ill at the time. He then said he doubted that he wrote it as a solicitor (tr 17). After being shown the sales advice in relation to the sale of the Portland property in which he was referred to as the vendor’s solicitor, he said he was not sure whether he was acting as the defendant’s solicitor in the transaction (tr 18). Mr Brown pressed the plaintiff further (tr 19-20)

Q. Please understand me, sir. What I am asking you is is it your evidence that you were never acting, never acting on your own account in relation to the sale of the Portland property?
A. No, that is not what I said.

Q. So you agree you were acting at some point?
A. No. I said I don’t know.

…

Q. Well, at the time of settlement of the sale of Portland, is it true to say that either you’re agent acting as a solicitor, or you were working for Rimmer & Associates on some basis in relation to that transaction; is that right?
A. That would be right, yes.

18 The plaintiff was not sure whether the balance of the purchase moneys for the Portland property went into his office account or his personal account, although he appeared sure they did not go into his trust account. The plaintiff accepted that he did not have a written authority from the defendant in relation to the payment of those moneys to him and he said, “I informed her what I was going to do and she didn’t object to it” (tr 22).

19 The plaintiff wrote to the defendant on 15 March 2004 in the following terms:

After speaking to you on the phone earlier today I thought I should send you a statement relating to the various loans I have made to assist you in the past few years and which I would hope to recoup from the sale of the Marsden Park land and the demountable homes.

In summary I think the following is the position and I would appreciate your confirmation.

not

Last year I lent $168,360 on the security of these homes which we were to place on the Marsden Park land but you did not have Council permission

Attached is a statement as to the monies I have lent you for your purchases

This is a long story but I will refresh your memory. It started with our purchase of the house owned by Mr Upe at Forest Lodge which we swapped for the house at Canowindra. Upe decided he wished to return to the city and we took back Canowindra and gave him back Forest Lodge. We then swapped Canowindra for Portland which we sold to Mrs Holden on terms. And you received all the monies from her with my agreement as you needed the money. Mrs Holden died and as she had not completed the purchase her executor handed back the keys.

As discussed with you on the phone I am happy for you to take the deposit as you urgently need money although I was of the opinion that you were agreeable to me taking the whole proceeds in view of the amount I had lent interest free. Accordingly as discussed and agreed on the phone you will note that in the statements I have credited you with the share of the sale ($23,113).

Summary

45,500

Credits: Portland 23,113

20 There were attachments to that letter alleged to be in support of the plaintiff’s loans. The plaintiff accepted in cross-examination that there was no reference in this letter to the Land being sold “immediately”. He also accepted in cross-examination that the reference to the repayment of “all my loans” was not a term of the alleged agreement upon which he is suing the defendant in these proceedings (tr 32).

21 On 8 December 2004 Mr Brown wrote to the plaintiff, enclosing the defendant’s authority to obtain the Title Deeds to the Land. The plaintiff responded by letter dated 14 December 2004 in terms that included the following:

22 In a letter to Todd Wilkie dated 21 June 2005, the plaintiff wrote:

My loans to her [the defendant] total $278,067 and this is after the credit for Portland. I believe I was very generous in lending such a large sum and on such terms.

That is now water under the bridge and we have to get on with solving the problems but it can only be on the basis that we tidy things up at the one time as a package not as separate items.

Re Marsden Park
Sophie entered into a contract and could not settle and would lose her deposit. She asked me to lend her the money and I did so without even inspecting the land which I now find to be flood prone without any made road frontage. The loan was on the basis that you would negotiate the sales and from the sales I would be repaid my loan and any other expenses such as rates (which I continue to pay) and you, she & I would share the profit as to one third each. I was offered $180,000, you were offered $200,000 but Sophie wanted $300,000 a figure I believe is unreasonable.

If we sold for $200,000 we would each make a handsome profit. You say you are prepared to forfeit your share leaving Sophie and I 50% each. This is very generous of you and I would be prepared to give you part of my share.

The result from a sale at $200,000 would result in me being repaid my $90,000 plus profit ($55,000) and Sophie receiving $55,000.

I will forego any interest I would have earned in the 2 years.

I will also pay her $23,113 being her half share from Portland making a total payment to her from the sale at Marsden Park of $78,113.

RE Relocatable Homes

As you are aware I lent Sophie $168,360 to purchase these at auction. As you remember I did not authorise her to bid for so many but I had to honour her purchase. She had not considered the buyer’s premium or GST.

Although I do not want all these units I am prepared to purchase them from her or (sic) $168,360 thus wiping off the loan. This was 2 years ago and I have not charged any interest which I would have earned.

Re my loan for the purchase of trees etc.

I would be prepared as a part of the package to take the trees etc and forgive the money I lent to her.

23 The plaintiff seeks an order for specific performance of the alleged Partnership Agreement and for a declaration that the defendant holds the Land upon express trust for the Partnership. The plaintiff also seeks an order for the appointment of a Trustee to sell the Land and divide the “net proceeds in terms of the said Partnership agreement”.

24 The plaintiff has made claims over the years that have suffered from a lack of consistency and clarity. The first position the plaintiff adopted appears in his letter to the defendant of 15 March 2004 in which he claimed, “I believe (sic) this land would be sold for $180,000 & after repayment of all my loans we are to share the profit”. There is no mention in that claim of any sharing arrangement or Partnership Agreement with the defendant’s son. It is also of significance that the plaintiff alleges that it was his belief that “all” his loans would be repaid before the net profit could be ascertained and shared, apparently, between himself and the defendant. The first paragraph of this letter refers to the plaintiff’s “hope”, as opposed to any contractual right, of recouping the “various loans” he had made to the plaintiff over the “past few years”, not only from the sale of the Land but also from the sale of the relocatable houses.

25 The plaintiff’s next position is evidenced in his letter to Mr Brown on 14 December 2004. In that letter the plaintiff claimed that the amount advanced to complete the purchase of the Land was made on the basis that the Land would be sold “immediately”; the plaintiff’s advance would be repaid; and the plaintiff, the defendant and the defendant’s son would share one third each in the net profits. This is the first time that the plaintiff introduced the concept of the Land being sold immediately. It was also the first time that the plaintiff alleged that the defendant’s son was part of, or the recipient of, the sharing of the profits. The plaintiff also changed his position from “all” his loans being repaid from the sale proceeds to only the repayment of the advance for the completion of the purchase.

26 The next position adopted by the plaintiff is evidenced in the Caveat that the plaintiff placed on the Land on 21 January 2005. The claim is that the plaintiff “paid the purchase price of the land on the basis of a partnership”, without further particulars.

27 The plaintiff’s next position is evidenced in his letter to the defendant’s son on 21 June 2005. In this letter the plaintiff appears to be informing the defendant’s son that his mother entered into a contract for the purchase of the Land and could not settle the contract and was about to lose her deposit. The plaintiff also informed the defendant’s son that the defendant had asked him to lend her the money and that he did so without even inspecting the Land and then complained that he had found out that it was flood prone. The plaintiff then proceeded to set out the basis upon which the loan was made and claimed that his advance would be repaid from the proceeds of the sale of the Land. There was no suggestion that the basis of the loan was that the plaintiff would be repaid “all” his loans, nor was there any suggestion that the Land would be resold “immediately”. This letter seems to me to be inconsistent with the plaintiff’s claim that he had already reached a Partnership Agreement with Mr Wilkie and his mother approximately two years prior to the date of that letter. It is supportive of a conclusion that the defendant’s son was, for the first time, being advised by the plaintiff of the alleged basis of the loan arrangement between his mother and the plaintiff.

28 The next position adopted by the plaintiff is that found in his verified Statement of Claim filed on 7 April 2008. The plaintiff claims that the defendant and her son entered into a verbal agreement that in consideration of the plaintiff advancing the balance of the purchase price and incidentals for the completion of the purchase of the Land, it would “immediately” be placed on the market for resale and that after the sale, the plaintiff and the defendant would be paid the respective amounts advanced and the profit would be shared between the plaintiff, the defendant and the defendant’s son. This is the first occasion on which it was alleged that the defendant would be repaid, presumably, for the deposit prior to the net profits being shared.

29 An issue arose during the trial as to whether the plaintiff was retained to act on the purchase and whether he obtained the file from Mr Cathers or only a copy of the contracts. As I have said, the defendant made a complaint to the Law Society against the plaintiff in 2005. The fact of that complaint, as opposed to its detail, was mentioned in evidence as was the fact that the complaint was dismissed. Part of the cross-examination of the plaintiff was aimed at establishing that: (a) he was acting as the plaintiff’s solicitor on the purchase of the Land at the time of the advance; (b) he stood to gain financially from the transaction by sharing in the profits from the sale of the Land; (c) he was in a position of conflict; and (d) by reason of that conflict he does not come to equity with clean hands and should be denied any relief.

30 The defendant attempted to establish that the plaintiff was her solicitor at the time that he agreed to advance to her the balance of the purchase moneys to complete the purchase of the Land. The only letter that is in evidence that would suggest that the plaintiff had some role in advising the defendant at that time is the letter of 22 July 2003 in respect of the sale of the Portland property. As I have already said, that letter is in rather peculiar terms and it is not clear whether it was written by the plaintiff in his own right or whether he was assisting his ill colleague at the conveyancing practice. The date of the letter 22 July 2003, is also curious. On the one hand the defendant claimed that she agreed in August 2003 with the plaintiff that the Portland property would be sold and yet this letter pre-dates that conversation. It would also appear that the Portland property was not sold until early 2004.

31 Although the plaintiff’s responses in cross-examination in relation to whether he was acting as the defendant’s solicitor at this time were rather unsatisfactory, the documentary material militates against the plaintiff acting for the defendant on the purchase of the Land. The Transfer of the Land, dated 22 August 2003, was signed by Mr Cathers as solicitor for the defendant. In those circumstances I am not satisfied that the defendant has established that the plaintiff was acting as the defendant’s solicitor on this transaction. Neither the conveyancing file for the purchase of the Land nor for the sale of the Portland property is in evidence. It is clear that the plaintiff acted for the defendant on the sale of the Portland property, but the date upon which the plaintiff was retained in respect of that transaction is unclear.

32 The plaintiff’s claim that there was agreement that the Land would be placed on the market for resale “immediately” is not supported by the evidence. The plaintiff’s evidence was that after the meeting at which he struck the alleged Partnership Agreement with the defendant and her son, there was a further meeting with the defendant and her son on 14 August 2003 in relation to the relocatable houses. The plaintiff produced a file note in respect of that meeting, in which there are two equivocal entries relevant to the plaintiff’s claim. The first was “All moneys to be returned. Split balance 1/3, 1/3, 1/3”. The second was “Repay B…[the plaintiff] + split 1/3, 1/3, 1/3”. In the first part of the note the suggestion is that all moneys are to be returned to the plaintiff with no detail as to the terms on which they would be “returned” nor as to the date on which they would be returned. The second part of the note seems to suggest repayment of some amount to the plaintiff, possibly only the advance, once again without detail as to terms or timing. This was not a note made at the time of the alleged Partnership Agreement, but in respect of the relocatable houses. It was not relied upon by the plaintiff as a reflection of the agreement between the plaintiff, the defendant and the defendant’s son that had been allegedly reached some days earlier. It was not a document signed by the defendant nor the defendant’s son. This was a meeting that the plaintiff described in his affidavit as follows:

33 There was nothing in the plaintiff’s affidavit dealing with the particular advance to the defendant in respect of the purchase of those houses. However the plaintiff’s letter of 15 March 2004 to the defendant refers to the loan of $168,360 on the security of the houses that were to be placed on the Land, with a claim that the defendant did not have council permission to do so. There is also the further claim by the plaintiff in his letter to the defendant’s son on 21 June 2005 that he did not authorise the defendant to bid for so many houses but that he honoured her purchase with the loan of $168,360.

34 The defendant claims that, irrespective of the outcome of the plaintiff’s claims, all moneys owing in respect of the advance for the purchase of the Land have been repaid. In this regard the defendant relied upon the Settlement Statement in respect of the Portland land. That Statement includes the record of payment of an amount of $38,340.50 to the plaintiff. There is also a record of an amount for what is described as the defendant’s “half share” of $32,113. Those two amounts total $70,453.50. The amount advanced by the plaintiff to the defendant in respect of the purchase of the Land was $86,629.32. Accordingly it was submitted that the defendant paid to himself the amount of $70,453.50 into his personal account and that the only outstanding amount in respect of the loan is approximately $16,175.82. There is also the question of whether the subtraction of an amount of $9,000 from the defendant’s half share entitlement was justified, possibly reducing the amount in dispute to $7,175.82. In any event, there is no doubt that the plaintiff has retained all the proceeds from the sale of the Portland property and has not accounted to the defendant in respect of that sale.

35 There is also no doubt that at the time of the sale of the Portland property the plaintiff was acting as the defendant’s solicitor. In cross-examination he sought to justify the retention of these funds on the basis of a letter that he suggested he wrote to the defendant advising her of what he intended to do and that she had not objected to that suggestion. The letter of 15 March 2004 does not in my view support this claim. It suggests that the defendant did not agree to the proposal that the plaintiff had apparently suggested on the telephone that he take the whole of the proceeds of the sale of the Portland property.

36 It is apparent that the relationship between the plaintiff and the defendant declined in 2004 when the plaintiff retained all moneys from the sale of the Portland property. The letter of 15 March 2004 is indicative of the confused state of the affairs between the plaintiff and the defendant, in particular, the reference to the swapping of land at Forest Lodge and Canowindra combined with the concept of the taking back of Canowindra, in exchange for the Portland property.

37 There was some evidence that the plaintiff and the defendant’s son had received offers to purchase the Land. There is also the allegation made by the plaintiff in his letter to the defendant’s son that the defendant wanted $300,000 for the Land and not the lesser figures that were apparently offered. The defendant gave evidence that she was not informed by either the plaintiff or her son of any offers to purchase the Land.

38 Ms Goodchild submitted that the term of the alleged agreement that the Land would be sold “immediately” may be construed consistently with the Land being sold in January 2004 when the alleged offers were made. Ms Goodchild submitted that the expression “immediately” needs to be construed in all the circumstances of the case. The natural and ordinary meaning of the expression “immediately” is “at once; instantly; without any intervening time or space”; The New Oxford Dictionary of English, Clarendon Press, Oxford (1998). The term “immediately” was only introduced into the plaintiff’s claim when he wrote to Mr Brown in December 2004. It is not necessary to decide this issue, however it seems to me that the expression “immediately” does not contemplate the process of locating houses on the property in due course, with the possible need to obtain Council approval.

39 The defendant submitted that the plaintiff’s failure to call the defendant’s son, Todd Wilkie, gave rise to an inference that his evidence would not have assisted the plaintiff’s case: Jones v Dunkel (1959) 101 CLR 298. In the circumstances of the case it is not necessary to decide this issue. I have already concluded that the plaintiff’s letter of 21 June 2005 to Mr Wilkie was in terms that suggested that he was informing him of an agreement he had reached with his mother, rather than confirming or alleging that he had reached a tri-partite partnership agreement some two years earlier.

40 Specific performance is a discretionary remedy. An order for specific performance is an order directing a party to a contract to perform that party’s obligations according to the terms of the contract. Where a contract or agreement is so uncertain and its construction is on so many points doubtful the Court will not make an order for specific performance: Tooth v Fleming (1859) 2 Legge 1152, per Stephen CJ (with whom Milford and Dickinson JJ agreed) at 1161.

41 The plaintiff has failed to establish the terms of the alleged Partnership Agreement with any certainty. That uncertainty includes the identification of the parties to the agreement; whether it was an agreement between the plaintiff and the defendant; or between the plaintiff, the defendant and the defendant’s son; whether the agreement included a term that “all” of the plaintiff’s loans were to be repaid prior to any profits being shared from the net profits of the sale of the Land; or only that his advance for the completion of the purchase of the Land was to be repaid prior to any such profits being shared; or whether the defendant’s payment of the deposit was to be repaid prior to the net profit being ascertained and shared; and/or whether the Land was to be re-sold immediately.

42 The plaintiff has failed to establish the terms of the contract in respect of which an order could be made that the defendant perform it according to its terms. It follows also that the plaintiff’s claim for a declaration of trust in terms of the “said partnership agreement” fails. In respect of the claim for the declaration of trust, the defendant relied upon section 23C of the Conveyancing Act (1919) NSW which provides as follows:

(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law,

(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will,

(c) the disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing.

43 The defendant submitted that the plaintiff had chosen to plead an express trust in respect of terms of the alleged Partnership Agreement which were not in writing and in those circumstances the claim would have failed for want of compliance with s 23C. The analysis of this submission would have required consideration of whether the agreement, if it had been proved, involved “a disposition of an equitable interest or trust subsisting at the time of the disposition” within the meaning of that section: Baloglow v Konstantinidis & Ors (2001) 11 BPR 20,721 per Priestley JA at 20,746-20,764. This point does not need to be decided because the plaintiff has failed to prove the alleged Partnership Agreement.

44 I should say something about the evidence the plaintiff elicited in cross-examination of the defendant with reference to her statutory declaration. That evidence was that she agreed that the plaintiff could have 26% of the profit “or similar”, whatever that might mean, when the Land was sold. That evidence was inconsistent with the plaintiff’s claim in a number of respects. There is no mention of a tri-partite agreement, as pleaded. There is no mention of the Land being sold immediately and there is no mention of repayment of amounts to either the plaintiff or the defendant. The expression 26% of the profit “or similar” is also loose and uncertain, however the plaintiff knew of this evidence as long ago as 2005 and did not seek any relief consistent with such a concession.

45 In the circumstances of these findings it is not necessary to decide the claim in respect of unclean hands. Finally I should say that the plaintiff’s retention of the moneys from the Portland property sale further militates against the granting of an order for specific performance or the making of a declaration of trust.

46 The plaintiff’s claims are dismissed. I will hear the parties in respect of costs.

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Citations

Bruce Percy Hocking v Sophia Lambiris aka Wilkie [2009] NSWSC 382

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

1

Luxton v Vines [1952] HCA 19

Jones v Dunkel [1959] HCA 9

CITATION:	Bruce Percy Hocking v Sophia Lambiris aka Wilkie [2009] NSWSC 382
HEARING DATE(S):	16, 17 and 19 March 2009
JUDGMENT DATE :	14 May 2009
JUDGMENT OF:	Bergin CJ in Eq
DECISION:	Plaintiff's claims dismissed
CATCHWORDS:	[SPECIFIC PERFORMANCE] - Whether plaintiff has established partnership agreement - whether specific performance should be ordered [TRUST] - Whether express trust - whether declaration should be made - whether Trustee should be appointed for sale of Land
LEGISLATION CITED:	Conveyancing Act (1919) NSW
CASES CITED:	Baloglow v Konstantinidis & Ors (2001) 11 BPR 20,721 Jones v Dunkel (1959) 101 CLR 298 Tooth v Fleming (1859) 2 Legge 1152
PARTIES:	Bruce Percy Hocking (Plaintiff) Sophia Lambiris aka Wilkie (Defendant)
FILE NUMBER(S):	SC 2225/08
COUNSEL:	L Goodchild (Plaintiff) M Brown (Solicitor) (Defendant)
SOLICITORS:	Dennis & Co (Plaintiff) Browns The Family Lawyers (Defendant)