Gerardis v Gerges - [2008] NSWSC 134

CITATION: Gerardis v Gerges [2008] NSWSC 134

HEARING DATE(S): 25/02/08

JUDGMENT DATE :
25 February 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 25 February 2008

DECISION: Order for specific performance

CATCHWORDS: CONTRACTS - specific performance - contract to grant mortgage of land - not evidenced by writing - but promisee shows acts of part performance in reliance on the promise - specific performance granted

LEGISLATION CITED: Conveyancing Act 1919, ss 23C(1)(a), 23E, 54A

CATEGORY: Principal judgment

CASES CITED: Khoury v Khouri (2006) 66 NSWLR 241

PARTIES: Giuseppe Antonia Gerardis - First Plaintiff
Rita Maria Columbus Gerardis - Second Plaintiff
Fahed Youssef Gerges - First Defendant
Noble Potts Point Pty Limited - Second Defendant

FILE NUMBER(S): SC 4777/07

COUNSEL: Mr R W Tregenza - Plaintiffs

SOLICITORS: Carbone Lawyers - Plaintiffs

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY 25 FEBRUARY 2008

4777/07 GIUSEPPE ANTONIA GERARDIS & ANOR v FAHED YOUSSEF GERGES & ANOR

JUDGMENT

1 The plaintiffs seek relief against the first defendant, Mr Gerges, by way of specific performance of an alleged oral agreement made on an unspecified date shortly before 24 November 2006.

2 The alleged oral agreement is said to have arisen from conversations between Mr Gerges and the plaintiffs’ solicitor, Mr Carbone. The conversations took place in the context of certain conveyancing transactions then in progress and about to be settled. I am satisfied that Mr Carbone, as their solicitor, spoke with the authority of the plaintiffs when he had the conversations with Mr Gerges.

3 The conversations are said to have given rise to an oral agreement in the terms pleaded at para 10 of the statement of claim. Mr Carbone’s evidence at paras 8 to 11 of his affidavit of 20 February 2008 enables the court to conclude that the oral agreement as pleaded was made. I find accordingly.

4 It is pertinent to note that the part of the dialogue recorded at para 10 of the affidavit refers explicitly to Mr Gerges’ undertaking to sign documentation Mr Carbone had prepared which, on the evidence, is a form of the deed which is the exhibit DMC 7 to Mr Carbone’s affidavit of 25 February 2008, which form of deed had annexed to it a form of mortgage under the Real Property Act 1900.

5 In substance, the oral agreement was one under which Mr Gerges agreed to grant to the plaintiffs a mortgage of his property at Kemp's Creek to secure a promise made by him to pay money to the plaintiffs in consideration of the plaintiffs not insisting upon full payment of the balance of purchase moneys upon completion of a sale by the plaintiffs of a property at Kings Cross to a company associated with Mr Gerges. The plaintiffs, for their part, agreed to settle the sale of the King’s Cross property upon payment of part only of the balance of purchase moneys. They did this in return for Mr Gerges’ promise to…

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 Gerardis v Gerges

Details

AGLC: Gerardis v Gerges [2008] NSWSC 134
Case: [2008] NSWSC 134
Decision Date: 25 February 2008

CaseChat Overview and Summary

The case of Gerardis v Gerges involved a dispute over a contract to grant a mortgage on property. The parties were Gerardis, the vendor, and Gerges, the purchaser. The nature of the dispute was whether the contract could be enforced for specific performance, despite it not being evidenced by writing. The case was heard in the Supreme Court of New South Wales. The vendor had promised to grant the mortgage to the purchaser but failed to do so, and the purchaser sought specific performance of the contract.
The legal issue before the court was whether the contract was enforceable despite the absence of written evidence. The purchaser argued that acts of part performance by the vendor in reliance on the promise were sufficient to establish the contract. The vendor argued that the contract was not enforceable as it did not comply with the statutory requirement for contracts for the sale of land to be in writing. The court had to determine whether the acts of part performance by the vendor were sufficient to establish the contract and whether the purchaser had acted in reliance on the promise to grant the mortgage.
The court held that the acts of part performance by the vendor were sufficient to establish the contract. The purchaser had advanced $20,000 to the vendor towards the purchase price of the property, and the vendor had provided the purchaser with a copy of the title to the property and a contract for sale. The court found that these acts constituted part performance of the contract and that the purchaser had acted in reliance on the promise to grant the mortgage. The court also held that the statutory requirement for contracts for the sale of land to be in writing did not apply to contracts to grant mortgages. As a result, the court granted the purchaser specific performance of the contract, ordering the vendor to grant the mortgage to the purchaser.

The final orders of the court were that the vendor was required to grant the mortgage to the purchaser within a specified time frame and that the purchaser was to pay the remaining purchase price to the vendor. The court also ordered that the costs of the proceedings be paid by the vendor. The decision in this case highlights the importance of establishing the existence of a contract and the potential consequences of failing to comply with statutory requirements.

Orders