Edgar v Byrnes - [2006] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
EDGAR v BYRNES
[2006] SADC 98
Judgment of His Honour Judge Burley
22 November 2006
EVIDENCE
Plaintiff unable to give evidence because of illness - whether affidavit of plaintiff should be admitted.
Evidence Act s45B, referred to.

EQUITY
Plaintiff alleged oral agreement to purchase real property jointly - absence of writing - whether enforceable - whether past performance.
Law of Property Act s 26, s26(1), s26(2), referred to.
Van Schaik Organic Soils and Bark Supplies Pty Ltd v Woakwine Industries Pty Ltd [2001] SASC 297; Maddison v Alderson [1883] LR 8 App Cas 467, considered.

EDGAR v BYRNES
[2006] SADC 98

In this matter the plaintiff claims two things : first a declaration that certain land is held by the defendant in trust for herself and the plaintiff as tenants in common; and second, a monetary judgment in the sum of $1,375.
At the trial, Mr Britton appeared for the plaintiff and Mr Gillam for the defendant.
The claim for the declaration is based on an assertion that the parties agreed jointly to purchase the strata titled unit No 11 at 33 Beach Road Brighton South Australia (“the unit”). The claim for the money sum is based on the assertion that the plaintiff and the defendant agreed to invest jointly in the share market and split any profits equally.
The defendant’s case is that there was never any agreement to purchase the property jointly. She contended that she purchased the property in her own right. As to the agreement to invest in the share market jointly, the defendant’s case is that there was such an agreement but it was never put into effect. She contended that it was a term of the agreement that the plaintiff would download share investment software onto her computer. It is common ground that the relevant software was never successfully downloaded onto the defendant’s computer. The plaintiff says that the computer equipment acquired by the defendant for that purpose was not compatible with the software. In her defence, the defendant asserted that the program never became operational or usable by her at any stage.
It is also common ground that prior to the attempted installation of the software, the plaintiff advanced $1,000 which was placed into a joint account and was to be used for the purposes of acquiring shares. Company shares were acquired with that sum. They were later sold for the sum of $3,750, thereby yielding a net profit of $2,750. The plaintiff claims to be entitled to half of this sum. It is common ground that the defendant received the gross sale proceeds in respect of the shares and has not accounted to the plaintiff in respect of the profit.
Before turning to the evidence adduced by the parties, I should mention the pleadings. The Statement of Claim is couched in different terms from the way in which I characterised the plaintiff’s claim for declaratory relief at the commencement of these reasons. That description…

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 Edgar v Byrnes

Details

AGLC: Edgar v Byrnes [2006] SADC 98
Case: [2006] SADC 98
Decision Date: 22 November 2006

CaseChat Overview and Summary

The plaintiff, Mr Edgar, sought a declaration that he held an equitable interest in a strata unit at Brighton as well as a monetary judgment. The defendant, Ms Byrnes, denied that there had been an agreement between the parties to jointly purchase the unit or to invest in the share market and split any profits equally. The court was required to determine whether there was an agreement between the parties to jointly purchase the property and to hold it on trust for both of them, or whether there was an agreement to invest in the share market and split any profits equally. The court also needed to consider whether, in the absence of such an agreement, the doctrine of part-performance could apply to enforce an oral agreement. The court found that there was no credible evidence of an agreement between the parties to jointly purchase the property or to invest in the share market and split any profits equally. The plaintiff's evidence was considered unreliable, and the defendant's evidence contradicted the plaintiff's claims. The court also found that the doctrine of part-performance did not apply because the plaintiff had not made the required payments to the defendant. The court dismissed the plaintiff's claim for a declaration of joint ownership and the monetary judgment. The court ordered that the action be dismissed and invited the parties to provide submissions on costs.

Orders