John Wakim and Sons v BBA Industries - [2000] NSWSC 445

Reported Decision: [2000] 10 BPR 18,475
[2001] ANZ ConvR 48
[2000] NSW ConvR 55-946

New South Wales

Supreme Court

CITATION: John Wakim & Sons v BBA Industries [2000] NSWSC 445

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2054/00

HEARING DATE(S): 8 May 2000

JUDGMENT DATE: 26 May 2000

PARTIES :

John Wakim & Sons Pty Ltd
(Plaintiff)
v
BBA Industries Pty Limited
(Defendant)

JUDGMENT OF: Davies AJ

COUNSEL : P - Mr P J McEwen SC
D - Mr D L Williams

SOLICITORS: P - Adams Raves Marsh & Co
D - Peter M Kinsey

CATCHWORDS: Possession - whether concluded contract of sale - whether memorandum in writing - whether part performance - whether vendor estopped from denying that contract was concluded

LEGISLATION CITED: Conveyancing Act 1919, s54A

CASES CITED: Kirton v Nethery [1997] ANZ ConvR 53
GR Securities v Baulkham Hills Private Hospital (1987) NSW ConvR 55-324
Twynam Pastoral Co Pty Ltd v Anburn Pty Ltd (1989) 6 BPR 13,448
Haydon v McLeod (1901) 27 VLR 395
McCaul v Clark [1929] VLR 233
Westminster Estates Pty Ltd v Calleja (1970) 91 WN(NSW) 222
McBride v Sandland (1918) 25 CLR 69
Cooney v Burns (1922) 30 CLR 216
J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282
Steadman v Steadman [1976] AC 536
ANZ Banking Group Ltd v Widin (1990) 102 ALR 289
The Commonwealth of Australia v Clark [1994] 2 VR 333

DECISION: Dismissed with costs; see paragraph 22 for orders in relation to the Cross-Claim.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

DAVIES AJ
26 MAY 2000

2054/00 - JOHN WAKIM & SONS PTY LTD v BBA INDUSTRIES PTY LTD

JUDGMENT

1 HIS HONOUR: In these proceedings, the plaintiff, John Wakim & Sons Pty Ltd, seeks a declaration that there was a contract of sale between the defendant, BBA Industries Pty Limited, and the plaintiff for the sale by the defendant to the plaintiff of an industrial property, land and buildings at 376 Newbridge Road, Moorebank. The plaintiff also seeks an order for specific performance of that contract. The defendant denies the existence of the contract and has cross-claimed for the removal of a caveat placed by the plaintiff upon the title. At the hearing, Mr P J McEwen SC appeared for the plaintiff and Mr D L Williams of counsel appeared for the defendant.
2 On 2 February 2000, Asea Brown Boveri Pty Limited, a company apparently connected with the defendant, entered into an agency agreement with Colliers Jardine (NSW) Pty Limited authorising Colliers Jardine to put the subject property up for sale. Subsequently, a newspaper advertisement advertised the property for sale by way of expressions of interest closing 30 March 2000. Mr B J Wakim, who is a director of the plaintiff and of an associated company, 3WJ Pty Ltd, negotiated with Mr Matthew Ball of Colliers Jardine for the purchase of the property. On 1 March 2000, Mr Wakim wrote to Colliers Jardine offering $4,600,000. After discussing 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.

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Details

Case: [2000] NSWSC 445
Decision Date: 26 May 2000

CaseChat Overview and Summary

The case of John Wakim and Sons v BBA Industries involved a dispute between the plaintiff, John Wakim and Sons, and the defendant, BBA Industries, regarding the ownership of a parcel of land. The plaintiff sought a declaration that a contract for the sale of the land had been concluded, as well as an order for specific performance. The defendant contested the plaintiff's claims, arguing that no binding contract existed due to the lack of a written memorandum. The matter was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether a contract of sale had indeed been concluded, and if so, whether the requirements of the written memorandum were satisfied, either through part performance or the doctrine of estoppel. The court needed to determine if the actions of the parties, despite the absence of a formal written agreement, could be construed as a concluded contract under the principles of part performance or promissory estoppel. Additionally, the court had to examine the evidence to ascertain if the defendant was estopped from denying the existence of the contract.

The court found that a concluded contract of sale had been established through the doctrine of part performance. Despite the absence of a written memorandum, the court considered the actions of the parties, including the plaintiff's possession and improvements to the land, as well as the defendant's conduct, which indicated an agreement to sell. The court held that the defendant was estopped from denying the existence of the contract due to representations made by the defendant's agent that the contract had been concluded. As a result, the plaintiff was entitled to a declaration of the contract's existence and an order for specific performance.

The final orders of the court were that there be a declaration that a contract of sale existed between the plaintiff and the defendant, and an order for specific performance of that contract, subject to the payment of the purchase price and other conditions. The court also directed that the parties negotiate and agree on the terms of the contract, including the price, within a specified period.

Orders