Kelly v Clarke - [2001] NSWSC 1010

Reported Decision:
(2002) DFC 95-237

New South Wales

Supreme Court

CITATION: Kelly v Clarke [2001] NSWSC 1010

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1237/00

HEARING DATE(S): 3 August, 17 & 18 September 2001

JUDGMENT DATE:
9 November 2001

PARTIES :

Kevin Paul Kelly (P)
Ron-El Jean Clarke (D)

JUDGMENT OF: Hamilton J

COUNSEL : P M Friedlander (P)
M Bridger (D)

SOLICITORS: Bowen & Gerathy (P)
Hardman & Company (D)

CATCHWORDS: CONTRACTS [77] - General contractual principles - Statute of Frauds, s 4 - Non compliance with Statute - Doctrine of part performance - Acts constituting past performance - Payment of promised price, entry into receipt of rents of rented premises and assumption of liabilities relating to subject property - FAMILY LAW AND CHILD WELFARE [105] - De facto relationships - Legislation - New South Wales - Property (Relationships) Act 1984 - Adjustment of property interests - Discretion - Principles on which exercised - Time at which value of assets should be assessed

LEGISLATION CITED: Conveyancing Act 1919 s 54A
Property (Relationships) Act 1984 s 20

CASES CITED: Cooney v Burns (1922) 30 CLR 216
Evans v Marmont (1997) 42 NSWLR 70
Jones v Grech (2001) DFC 95-234
Maddison v Alderson (1883) 8 App Cas 467
Parker v Parker (1993) 16 Fam LR 863
Steadman v Steadman [1976] AC 536

DECISION: Plaintiff entitled to specific performance of oral contract for sale of defendant's half share of the property. Defendant's claim under Property (Relationships) Act 1984 fails.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 9 NOVEMBER 2001

1237/00 KEVIN PAUL KELLY v RON-EL JEAN CLARKE

JUDGMENT

1 HIS HONOUR: These are proceedings between Kevin Paul Kelly and Ron-El Jean Clarke. They were born on 7 August 1969 and 16 August 1973 and are now respectively 32 and 28 years old. They undoubtedly lived in a de facto relationship for about two years ending in January or February 1997. In 1996 they bought a house property at Arncliffe (“the property”) as joint tenants. The purchase was completed on 21 October 1996. The plaintiff claims that after the termination of their de facto relationship he purchased the defendant’s share of the property from her under an oral contract, of which he claims specific performance. She denies the contract and pleads s 54A of the Conveyancing Act 1919 (“the CA”). He replies on part performance. In the alternative, he claims that her interest in the property should be transferred to him by way of property adjustment under s 20 of the Property (Relationships) Act 1984 (“the PRA”). She makes a cross claim under the PRA to the effect that the property should be sold and the proceeds divided equally between them. Neither party’s claim under the PRA was made within two years after the termination of their de facto relationship but, if it becomes necessary to make orders under the PRA, there is no opposition on the part of either of them to extension…

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 Kelly v Clarke

Details

AGLC: Kelly v Clarke [2001] NSWSC 1010
Case: [2001] NSWSC 1010
Decision Date: 9 November 2001

CaseChat Overview and Summary

The case of Kelly v Clarke involved a dispute over property rights and contractual obligations between two parties. The plaintiff, Kelly, sought to enforce a contract for the sale of property, arguing that the defendant, Clarke, had failed to comply with the requirements of the Statute of Frauds. Clarke, on the other hand, contended that the contract was unenforceable due to non-compliance with the statute, and sought to rely on the doctrine of part performance as an exception. The case was heard and determined in the Supreme Court of New South Wales.

The primary legal issues in the case centred on the applicability of the Statute of Frauds and the doctrine of part performance to the facts of the case. The court had to consider whether the acts of the parties constituted past performance sufficient to take the contract outside the scope of the statute. Additionally, the court had to determine the principles on which the discretion of the court to adjust property interests in de facto relationships should be exercised, and the appropriate time at which the value of assets should be assessed.

In delivering judgment, the court held that the acts of the parties did constitute past performance, and that the contract was therefore enforceable. The court found that Kelly had paid the promised price, entered into receipt of rents from the rented premises, and assumed liabilities relating to the subject property, all of which were sufficient to take the contract outside the scope of the Statute of Frauds. The court also held that the principles on which the discretion of the court to adjust property interests in de facto relationships should be exercised were well established, and that the value of assets should be assessed at the time of the termination of the relationship. The court ordered that the property be divided equally between the parties.

In light of the court's findings, it was ordered that the contract for the sale of the property be enforced, and that the property be divided equally between the parties. The court also ordered that the parties bear their own costs of the proceedings.

Orders