Greenwood v Kingston Properties Pty Ltd - [2007] NSWSC 1108

CITATION: Greenwood v Kingston Properties Pty Ltd [2007] NSWSC 1108

HEARING DATE(S): 27/8/07

JUDGMENT DATE :
9 October 2007

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Plaintiffs entitled to final instalment of purchase price of $1 million plus interest as agreed in the contract.

CATCHWORDS: CONVEYANCING [117]- Position of parties after completion- Other matters- Defendant buys property for $2.6 million- $1.6 million payable on completion- Balance payable when purchaser transfers or assigns interest in property- Defendant sets up trust and transfers its interest in subject property to new trustee before completion- Vendors later signed caveat naming new trustee as registered proprietor- Not an acquiescence in transfer- Outstanding purchase monies payable. ESTOPPEL [29]- Estoppel by convention- Not made out as no evidence of common assumption.

LEGISLATION CITED: Partnership Act 1892

CASES CITED: CTM Nominees Pty Ltd v Galba Pty Ltd (1982) 2 BPR 9588
Davis v Williams (2003) 11 BPR 21,313
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431
Great Western Railway v Bristol Corporation (1918) 87 LJ Ch 414
Hallifax Mortgage Services Ltd v Stepski [1996] Ch 207
Re South African Supply and Cold Storage Co [1904] 2 Ch 268
Re Transphere Pty Ltd (1984) 5 NSWLR 309
Waterman v Gerling Australia Insurance Co Pty Ltd (2005) 65 NSWLR 300

PARTIES: John George Greenwood (P1)
Joy Greenwood (P2)
Kingston Properties Pty Limited (D)

FILE NUMBER(S): SC 2106/06

COUNSEL: J R Wilson SC (P)
I E Davidson and E Ito (D)

SOLICITORS: Lea Smith (P)
Patey & Murphy (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 9 October 2007

2106/06 – GREENWOOD v KINGSTON PROPERTIES PTY LTD

JUDGMENT

1 HIS HONOUR: This is an unusual conveyancing case. On 13 February 2004, the plaintiffs and the defendant entered into a contract in the 2000 edition of the standard form by which the plaintiffs sold their property at 46 Medowie Road, Medowie to the defendant. The price was noted on the first page of the contract as $2,600,000.00 with a deposit of $80,000.00.

2 Clauses 38, 40 and 42 of the contract were as follows:

38. Price

38.1 The purchaser will pay to the vendor on completion of this contract part of the price being $1,600,000.00 (less any deposit paid).

38.2 The balance of $1,000,000.00 will be paid by the purchaser to the vendor in accordance with clause 40.

40. Balance of the Purchase Price

40.1 If the date of gazettal of the rezoning of the land in accordance with clause 39.1 or 39.3 is no later than 5 years after the date of completion of this contract then the purchaser will pay the vendor the balance of the price on or before the date 30 days after the date of gazettal of the rezoning of the land.

40.2 If the purchaser completes a contract for the sale of the land to another party or otherwise transfers or assigns all or…

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.

Keep reading for free

Create a free CaseChat account to read Greenwood v Kingston Properties Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWSC 1108
Decision Date: 9 October 2007

CaseChat Overview and Summary

The case of Greenwood v Kingston Properties Pty Ltd involved a dispute concerning the position of the parties after the completion of a property sale. Greenwood purchased a property from Kingston Properties Pty Ltd for $2.6 million, with $1.6 million payable upon completion and the remaining balance to be paid when Greenwood transferred or assigned its interest in the property. Before the completion, Greenwood established a trust and transferred its interest in the property to the new trustee. Subsequently, the vendors signed a caveat naming the new trustee as the registered proprietor. The primary issue for the court was whether the vendors' actions amounted to an acquiescence in the transfer of the property interest to the new trustee and, if not, whether the outstanding purchase monies remained payable.

The court had to determine the legal implications of the vendors' actions in signing the caveat. The court held that the vendors' conduct did not constitute an acquiescence in the transfer of the property interest to the new trustee. Instead, it was a challenge to the validity of the transfer. The court found that the vendors had not accepted the new trustee as the lawful proprietor of the property and that the transfer was not recognised by the vendors. Consequently, the outstanding purchase monies remained payable by Greenwood to Kingston Properties Pty Ltd.

The court's reasoning hinged on the interpretation of the vendors' actions and their intent. By signing the caveat, the vendors demonstrated that they did not intend to recognise the new trustee as the legitimate owner of the property. The court emphasised that the vendors' actions were a formal challenge to the transfer, rather than an acceptance of it. Therefore, the transfer did not affect the contractual obligations between the parties, and the outstanding purchase price remained due.

The final orders of the court required Greenwood to pay the outstanding balance of $1 million to Kingston Properties Pty Ltd. The court confirmed that the vendors' actions did not alter the contractual obligations between the parties, and the transfer of the property interest to the new trustee did not absolve Greenwood of its financial obligations. The vendors' caveat did not result in any change to the original terms of the sale, and the outstanding purchase price remained payable as agreed.

Orders