Fisher v Degnan

[2022] NSWCA 202

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Fisher v Degnan [2022] NSWCA 202

Hearing dates:

18 May 2022

Date of orders:

11 October 2022

Decision date:

11 October 2022

Before:

Macfarlan JA at [1];
Kirk JA at [11];
Basten AJA at [100]

Decision:

The appeal is dismissed with costs.

Catchwords:

CONTRACTS — Contracts requiring written evidence — Statute of frauds — Contract said to record agreement for sale of land — Family arrangement — Construction — Whether contract was an agreement for sale of land — Whether a clause headed “Recitals” was an operative provision — Whether contract a note or memorandum of agreement

APPEALS — Point not taken below — Whether point taken below — Whether claim, though pleaded, proceeded on a different basis at trial

Legislation Cited:

Conveyancing Act 1919 (NSW) ss 23C and 54A

Cases Cited:

Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 54; [1977] HCA 71

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24

Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407

Lym International Pty Ltd v Marcolongo [2011] NSWCA 303; 15 BPR 29,465

Orleans Investments Pty Ltd v MindShare Communications Ltd (2009) 254 ALR 81; [2009] NSWCA 40

Schwartz v Hadid [2013] NSWCA 89

Texts Cited:

K Lewison, The Interpretation of Contracts (4th ed, 2007, London, Sweet & Maxwell)

Category:

Principal judgment

Parties:

Karen Anne Fisher (First Appellant)
George John Fisher (Second Appellant)
Judith Anne Degnan (Respondent)

Representation:

Counsel:
G Sirtes SC and B Le Plastrier (Appellants)
G Carolan (Respondent)

Solicitors:
Coastal Law and Conveyancing Pty Limited (Appellants)
Green & McKay (Respondent)

File Number(s):

2021/323942

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2021] NSWSC 1334

Date of Decision:

19 October 2021

Before:

Lindsay J

File Number(s):

2019/00396889

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2011, Mrs Karen Fisher and Mr George Fisher became the registered proprietors of land in Sawtell. Karen Fisher is the daughter of Mrs and Mr Degnan. Mr Degnan died in 2015. The couples contemplated that the Degnans might live in the existing dwelling, and that the Fishers would build and then live in a second dwelling behind the first, with the block being subdivided. The Degnans began to live in an existing dwelling at the front of the property. The Fishers subsequently built another house at the rear of the block.

In early July 2012, Mr Degnan transferred $250,000 into an account held by the Fishers. Later in July, a document titled “Deed of Loan” was executed by the two couples. Clause 3 of the Deed was headed “Recitals” and provided in part:

“Degnan has agreed to pay the Principal Sum to the Borrower for purchase of a property situated at [Sawtell]. That property is one of two situated…