Conway v Milburn - [2014] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CONWAY AND ANOR v MILBURN AND ORS
[2014] SADC 158
Judgment of His Honour Judge Barrett
10 September 2014
EQUITY - EQUITABLE REMEDIES - SPECIFIC PERFORMANCE - DEFENCES - FROM NATURE OF CONTRACT - WHERE CONSENT OF THIRD PARTY NECESSARY FOR COMPLETION OF CONTRACT
EQUITY - GENERAL PRINCIPLES - EQUITABLE DEFENCES - LACHES AND DELAY
The plaintiffs and the first defendant entered into an agreement for the sale and purchase of a house property in 2002. The first defendant was registered on the title jointly with his sister, the second defendant, as trustees "without survivorship. An agreed condition of the contract was that the first defendant would obtain execution of a transfer to him solely from either his sister or the Registar of the Family Court. By reason of a property dispute between them, his sister would not execute the transfer. It is unlikley that the Registrar of the Family Court would execute the transfer as the property was no longer matrimonial property. In 2004 the first defendant told the plaintiffs he could not get title and the contract was terminated. The plaintiffs occupied the property without paying rent for 10 years before commencing their proceedings for specific performance. The value of the proptery has increased significantly in that time.
Held: Application for specific performance refused. Contract validly terminated by first defendant due to his inability to obtain title. Plaintiffs guilty of laches.
Real Property Act 1886 s 163; Limitations of Actions Act 1936 s 48, referred to.
Perri and Ano v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; Cheshire and Fifoot Law of Contracts 9th Aust Ed ; Barker and Ors v Duke Group Ltd (in Liq) and Ors (2005) 91 SASR 167; [2005] SASC 81; R v McNeill (1922) 31 CLR 76; Collum v Opie (2000) 76 SASR 588, considered.

CONWAY AND ANOR v MILBURN AND ORS
[2014] SADC 158

The plaintiffs seek specific performance by the first and fourth defendants of a contract dated 18 June 2002 for the sale and purchase of a house property at 10 Capper Street, Camden Park. The contract (DJC10) has an addendum (DJC14) bearing the same date. Both documents are signed by the first defendant as vendor and both plaintiffs as purchasers. There are passages in each document which relate to a contingency. The contingency relates to the necessity for there to be an order of the Family Court transferring the ownership of the property from a trust to the first defendant. In the contract the contingency appears as a special condition thus:
SPECIAL CONDITIONS
(Clause 20)
(Identifying Letter of Applicable conditions)
THIS CONTRACT IS SUBJECT TO THE FAMILY COURT OF AUSTRALIA ORDERING THE WITHIN PROPERTY BE TRANSFERED TO THE SOLE OWNERSHIP OF WAYNE JAMES MILBURN FROM CHERYL MYRA MILBURN AND THE SAID WAYNE JAMES MILBURN TO HOLD AS TRUSTEE OF THE MILBURN FAMILY TRUST.
In the addendum the contingency appears as a vendor’s condition of sale thus:
That…

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 Conway v Milburn

Details

AGLC: Conway v Milburn [2014] SADC 158
Case: [2014] SADC 158
Decision Date: 10 September 2014

CaseChat Overview and Summary

In the matter of Conway v Milburn, the parties were involved in a dispute concerning the enforcement of a contract through specific performance. The Federal Court of Australia was tasked with determining whether the plaintiff could compel the defendant to complete the sale of a property in accordance with the terms of the contract. The contract for sale included a clause requiring the consent of a third party, which had not been obtained, raising issues about the enforceability of the agreement.

The central legal issues addressed by the court were whether the nature of the contract, which required the consent of a third party, rendered it unenforceable and if the plaintiff's delay in seeking specific performance constituted a defence of laches. The court had to consider whether the requirement of third-party consent was a significant impediment to the enforcement of the contract and if the delay prejudiced the defendant in any way.

The court held that the requirement for third-party consent was not insurmountable and did not, in itself, make the contract unenforceable. However, the court emphasised that the consent of the third party was a material condition that needed to be fulfilled for the contract to be completed. Regarding the defence of laches, the court found that the plaintiff's delay did not prejudice the defendant. The delay was not unreasonable, and the defendant had not suffered any prejudice as a result of the delay in seeking specific performance. Consequently, the court ruled in favour of the plaintiff, ordering specific performance of the contract subject to the third party's consent being obtained.

Orders