Irvine v Dowling - [2021] NSWSC 119

Supreme Court

New South Wales

Medium Neutral Citation: Irvine v Dowling [2021] NSWSC 119
Hearing dates: 18, 19, 20, 22 May, 17 June and 13 August 2020; supplementary written submissions 11 June, 12 August, 11 September, 15, 23 October and 5 November 2020.
Decision date: 19 February 2021
Jurisdiction: Equity - Probate List
Before: Kunc J
Decision:
Defendant entitled to purchase property from estate

Catchwords:
LAND LAW — Conveyancing — Requirements of writing — Agreement to create or dispose of interest in land — Where beneficiaries including executrix agree in writing to bid among themselves to purchase estate property instead of sale by public auction — Whether subsequent purported oral variation enforceable —Conveyancing Act 1919 (NSW), s 54A(1)

Legislation Cited:
Conveyancing Act 1919 (NSW)

Cases Cited:
Allied Marine Transport Ltd v Vale do Rio Doce Navegacao S.A. (Leonidas D) [1985] 1 WLR 925
Axelsen v O’Brien (1949) 80 CLR 219; [1949] HCA 18
Esdaile v Stephenson (1822) 57 ER 49
Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53
Green v Sommerville (1979) 141 CLR 594; [1979] HCA 60
Radoman Pty Ltd v Vexapu Pty Ltd [2008] BPR 24,903; [2008] NSWSC 8
Unisys International Services v Eastern Counties Newspapers [1991] 1 Lloyds Rep 538
Wright v Madden [1992] 1 Qd R 343

Texts Cited:
J D Heydon, Heydon on Contract, Law Book Co, 2019

Category: Principal judgment
Parties: Maxwell Charles James Irvine (Plaintiff and Cross-Defendant)
Elizabeth Ruth Dowling (First Defendant and Cross-Claimant)
Robert John Irvine (Second Defendant)
Representation:
Counsel:
L Ellison SC (Plaintiff and Cross-Defendant)
E Cohen (First Defendant and First Cross-Claimant)
D Williams (Second Defendant and Second Cross-Claimant)
Solicitors:
McIntosh McPhillamy & Co (Plaintiff and Cross-Defendant)
Aubrey F Crawley & Co (First Defendant and First Cross-Claimant)
Nexus Lawyers (Second Defendant and Second Cross-Claimant)

File Number(s): 2018/00014669
Publication restriction: No

Judgment

Summary

Robert John Irvine, Maxwell “Max” Charles James Irvine and Elizabeth Ruth Dowling are siblings and the only children of the late Verdun John Irvine. For convenience and without any disrespect, the Court will refer to the parties in these proceedings and others by their given names.
These proceedings are yet another chapter in what is nearly thirty years of litigation over the administration of their late father’s estate (the “Estate”). Verdun died in September 1992. Elizabeth was granted probate of his will on 19 November 1992. Robert, Max and Elizabeth have been the sole beneficiaries of the Estate since June 2002. At the time of the hearing, Robert, Max and Elizabeth were aged 79, 71 and 65 respectively.
The main asset in the Estate was and still remains a farming property called “Lowery”, located near Orange in New South Wales. In 1998, Lowery was subdivided and the northern part sold pursuant to orders made by Cohen J of this Court on 14 October 1994. In these reasons, reference to the “Property” is to the southern subdivision only, unless otherwise specified.
Elizabeth, as executrix of the Estate, is the registered proprietor of the…

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 Irvine v Dowling

Details

AGLC: Irvine v Dowling [2021] NSWSC 119
Case: [2021] NSWSC 119
Decision Date: 19 February 2021

CaseChat Overview and Summary

Irvine v Dowling was a case before the court involving a dispute concerning the requirements of writing under the Conveyancing Act 1919 (NSW) in relation to an agreement to create or dispose of an interest in land. The beneficiaries, including the executrix, had agreed in writing to bid among themselves to purchase an estate property instead of selling it by public auction. The central issue in the case was whether a subsequent purported oral variation of this agreement was enforceable.

The legal issue before the court was whether the oral variation of the written agreement could be enforced. The court had to determine if the oral variation was valid under section 54A(1) of the Conveyancing Act 1919 (NSW), which stipulates the requirements for the creation or disposition of an interest in land. This provision requires that the agreement be in writing and signed by the party to be charged. The court was tasked with examining whether the oral variation complied with these statutory requirements.

In reaching its decision, the court considered the express terms of the written agreement and the evidence of any subsequent oral variation. The court found that the written agreement was clear and unambiguous, stipulating that any variation must be in writing and signed by all parties. The court held that the oral variation did not meet the statutory requirement for writing and therefore was not enforceable. The court emphasised the importance of adherence to the statutory provisions regarding the creation or disposition of interests in land to ensure clarity and enforceability.

The court ordered that the oral variation was not enforceable, and the written agreement between the beneficiaries to bid among themselves would stand. This decision underscored the importance of complying with the statutory requirements for agreements concerning interests in land and reinforced the principle that oral variations are generally not sufficient to alter written agreements in this context.

Orders