James v Barker - [2009] NSWSC 725

CITATION: James v Barker [2009] NSWSC 725

HEARING DATE(S): 13, 14 and 15 July 2009

JUDGMENT DATE :
30 July 2009

JURISDICTION: Equity

JUDGMENT OF: Tamberlin AJ

DECISION: (1) I direct the parties to provide Short Minutes of Order within 10 days reflecting the reasons given in this judgment.
(2) The first defendant is to pay the plaintiff’s costs of the proceedings.

CATCHWORDS: CONTRACT - Whether oral agreement reached between the parties to the effect that one party agreed not to sever joint tenancy - whether repudiations by one party - REAL PROPERTY - defences to applications for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) - whether there can be agreement not to sever.

LEGISLATION CITED: Conveyancing Act 1919 (NSW)

CATEGORY: Principal judgment

CASES CITED: Goyal v Chandra (2006) 68 NSWLR 313
Laurinda Pty Limited v Capalaba Park Shopping Centre Pty Limited (1989) 166 CLR 623
Nagatoa v Ford (1990) 19 NSWLR 72
Williams v Legg (1993) 29 NSWLR 687

TEXTS CITED: Cheshire and Fifoot's Law on Contract, 8th Australian edition, Seddon and Ellinghaus (2002) at [21.11]

PARTIES: Jennifer Elizabeth James (Plaintiff)
Howard John Barker (First Defendant)
The Registrar-General (Second Defendant)

FILE NUMBER(S): SC 7568/2007

COUNSEL: R D Wilson (Plaintiff)
A Crossland (First Defendant)

SOLICITORS: McGowan Solicitors (Plaintiff)
L J Rickard (First Defendant)
Submitting Appearance (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING JUSTICE TAMBERLIN

THURSDAY, 30 JULY 2009

& ANOR

JUDGMENT

1 HIS HONOUR: By Amended Statement of Claim, the plaintiff (“James”) seeks a declaration that she and the first defendant (“Barker”), as registered proprietors in equal shares as joint tenants in a property located at 3/7 Kenneth Street, Tamarama (“the Tamarama property”), entered into an agreement in about February 1999 not to sever the joint tenancy in the property or sell the property. The result was that the property would pass to the survivor of James and Barker and thereafter provide a home for their son, Justin Barker (“Justin”). For convenience I will use abbreviated references, to the relevant parties in this matter.

2 Alternatively, James seeks a declaration that Barker is estopped from severing the joint tenancy or taking any action to sell or otherwise deal with the property; or a declaration that James and Barker hold the property as equitable joint tenants in such proportions as the Court determines. Consequential restraining orders are sought against Barker severing the joint tenancy or selling the property or seeking orders for the appointment of trustees for sale of the property under s 66G of the Conveyancing Act 1919 (NSW) (“the Act”), together with an order that the Registrar-General be restrained from registering any dealings lodged by Barker purporting to sever the joint tenancy.

3 The main issue in the case is whether there was an agreement reached in February 1999 or representations made and relied on to the effect that Barker agreed not to sever the joint tenancy in the property and agreed to it passing…

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 James v Barker

Details

AGLC: James v Barker [2009] NSWSC 725
Case: [2009] NSWSC 725
Decision Date: 30 July 2009

CaseChat Overview and Summary

The case of James v Barker involved the parties entering into a joint tenancy over a property in New South Wales. The dispute arose when one party sought to sever the joint tenancy and sell the property, while the other party resisted this action. The matter was heard in the Supreme Court of New South Wales. The central legal issues before the court were whether an oral agreement had been reached between the parties stipulating that neither would sever the joint tenancy and whether there had been any repudiations by one party against the other in relation to this agreement. Additionally, the court had to determine the available defences to an application for the appointment of trustees for the sale of the property under section 66G of the Conveyancing Act 1919 (NSW).

The court found that there was evidence of an oral agreement between the parties that they would not sever the joint tenancy. This agreement was deemed to be binding and enforceable despite being oral in nature. The court held that the existence of such an agreement constituted a valid defence against the application for the appointment of trustees for sale. The court also found that there had been no repudiations by either party of the agreement. In reaching this conclusion, the court considered the conduct of the parties and the circumstances surrounding the alleged agreement. The court ultimately determined that the agreement not to sever the joint tenancy was a legitimate and binding arrangement between the parties, thereby preventing the application for the sale of the property.

Given the court's findings, the application for the appointment of trustees for the sale of the property was dismissed. The court's ruling emphasised the enforceability of oral agreements in certain circumstances and highlighted the importance of considering the conduct and intentions of the parties involved in determining the existence and terms of such agreements. The court's decision provided clarity on the ability to agree not to sever joint tenancy and reinforced the principle that parties can enter into binding agreements without the need for formal written documentation.

Orders