Jennings v Jennings

[2016] NSWCA 29

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Jennings v Jennings [2016] NSWCA 29
Hearing dates:	1 March 2016
Date of orders:	01 March 2016
Decision date:	01 March 2016
Before:	Ward JA at [1]; Leeming JA at [25]; Emmett AJA at [26]
Decision:	Summons for leave to appeal dismissed with costs.
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-60 Real Property Act 1900 (NSW)
Cases Cited:	Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Jennings v Jennings [2015] NSWSC 1826 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72
Category:	Principal judgment
Parties:	Paul Jennings (Applicant) Eileen Jennings (Respondent)
Representation:	Counsel: CH Cassimatis (Respondent) H Weller (solicitor) (Applicant)   Solicitors: Herbert Weller (Applicant) Mitry Lawyers (Respondent)
File Number(s):	2015/00359116
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 1826 Date of Decision: 01 December 2015 Before: Pembroke J File Number(s): 2013/00265679

Judgment

1. WARD JA: By summons filed 14 December 2015, the first applicant, Paul Jennings, seeks leave to appeal from a decision of Pembroke J in the Equity Division ([2015] NSWSC 1826) in which his Honour, on an application by Paul’s mother, Eileen Jennings, ordered Mr Jennings to execute a deed of release and such other documents, including any transfer under the Real Property Act 1900 (NSW), as may be necessary to give effect to his obligations under the deed of release.

2. The application for specific performance arose in the context of proceedings Mrs Jennings had brought against her son in 2013 relating to the family house at Greystanes. His Honour found that an agreement made in the course of a mediation between the respective parties was binding on Mr Jennings and proceeded to enforce that agreement.

3. The grounds of appeal which Mr Jennings seeks to raise, if leave is granted, are as follows:

1. His Honour erred by not finding that the objective intention of the parties was not to make a concluded bargain at all unless and until they execute of [sic] a formal contract.

2. His Honour erred in finding that the parties were immediately bound by the oral agreement whilst expecting to make a further contract in substitution for the first contract containing by consent additional terms.

3. His Honour erred in finding that the parties proposed to substitute the oral agreement with a written document containing by consent additional terms.

4. His Honour erred in finding that a third person who was not a party to the oral agreement was entitled to benefits under the agreement.

4. The reference in the proposed fourth ground of appeal to a third person being entitled to the benefits of the agreement though not a party to it is apparently a reference to Mr Jennings’ sister, Christine, who was not a party to the mediation agreement but who was, under the terms of that agreement, to obtain a benefit in that the property was to be…