Horswill v McClellan - [2019] NSWSC 557

Supreme Court

New South Wales

Medium Neutral Citation: Horswill v McClellan [2019] NSWSC 557
Hearing dates: 13 May 2019
Date of orders: 16 May 2019
Decision date: 16 May 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Orders made for specific performance

Catchwords: LAND LAW – contract for sale of land – claim for specific performance – doctrine of part performance – plaintiffs and defendants own adjoining properties – plaintiffs entered into oral agreement with defendants to purchase part of the defendants’ property – requisite boundary adjustment to be effected by means of two separate subdivisions – where the parties completed the first subdivision but first defendant refused to proceed with the second subdivision – whether sufficient acts of part performance – sufficient acts of part performance established – specific performance granted
Legislation Cited: Contracts Review Act 1990 (NSW), s 7
Conveyancing Act 1919 (NSW), s 54A
Uniform Civil Procedure Rules 2005 (NSW), r 29.7
Cases Cited: Maddison v Alderson (1883) 8 App Cas 467
McBride v Sandland (1918) 25 CLR 69
Pipikos v Trayans (2018) 92 ALJR 880; [2018] HCA 39
Phung v Phung [2019] NSWSC 117
Category: Principal judgment
Parties: Robert Leslie Horswill (First Plaintiff)
Kim Maree Horswill (Second Plaintiff)
Adam Leslie McClellan (First Defendant)
Jennifer Anne McClellan (Second Defendant)
Representation:
Counsel:
Mr D C Price (Plaintiffs)
Solicitors:
Shaddock Lawyers (Plaintiffs)

File Number(s): 2017/290046
Publication restriction: None

Judgment

Introduction

The plaintiffs and the defendants are the respective owners of two adjoining properties in West Portland Road, Sackville. By their Statement of Claim filed on 25 September 2017, the plaintiffs (Mr and Mrs Horswill) seek orders for specific performance of an oral agreement to purchase a portion of the defendants’ property. The plaintiffs seem to accept (correctly in my view) that, apart from the law relating to part performance, the agreement is not enforceable by reason of the operation of s 54A of the Conveyancing Act 1919 (NSW) for want of a note or memorandum of the agreement that satisfies the requirements of the section. However, the plaintiffs contend that there have been sufficient acts of part performance of the agreement to give rise to an equity to have the agreement completed.
The defendants, Adam McClellan and Jennifer McClellan were formerly a married couple. They are now divorced. Ms McClellan filed a submitting appearance. Mr McClellan opposes the plaintiffs’ claim. He filed an Amended Defence on 22 December 2017. By that pleading, Mr McClellan put in issue a number of the facts alleged by the plaintiffs, and denied that there were acts of part performance that would entitle the plaintiffs to the relief claimed. The Amended Defence also raised various other matters which are said to render the alleged agreement unjust within the meaning of s 7 of the Contracts Review Act 1990 (NSW), or unconscionable.
However, when the matter was called on for hearing, Mr McClellan failed to appear. An application for an adjournment of the hearing, made in an irregular and informal manner but treated as if…

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 Horswill v McClellan

Details

AGLC: Horswill v McClellan [2019] NSWSC 557
Case: [2019] NSWSC 557
Decision Date: 16 May 2019

CaseChat Overview and Summary

The plaintiffs, Horswill, and the defendants, McClellan, are adjoining property owners in the Northern Territory. The Horswills commenced proceedings claiming specific performance of an alleged oral agreement for the sale of a portion of the McClellans' property. The agreement was to be finalised by means of two separate subdivisions. The Horswills completed the first subdivision, but the McClellans refused to proceed with the second. The primary issue before the court was whether the Horswills had established sufficient acts of part performance of the alleged agreement to warrant specific performance.

The court examined the evidence to determine if there was sufficient evidence of acts of part performance. It found that the Horswills had acted on the alleged agreement by completing the first subdivision, which was a significant act of part performance. Additionally, the court found that the Horswills had made payments to the McClellans and carried out other acts in reliance on the agreement. The court was satisfied that these acts were sufficient to establish the doctrine of part performance. Consequently, the court granted the Horswills' claim for specific performance of the agreement. The McClellans' appeal against the decision was dismissed.

Orders