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Khan v Khan

Khan v Khan

Case [2004] NSWSC 1189 10 December 2004

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Reported Decision:
62 NSWLR 229

Supreme Court

CITATION: Khan & Anor v Khan & Anor [2004] NSWSC 1189

HEARING DATE(S): 30/11/04, 01/12/04

JUDGMENT DATE:
10 December 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Order for specific performance refused

CATCHWORDS: EQUITY - undue influence - Mufti advises defendant in plaintiffs' presence of religious duty to honour oral promise to sell land to plaintiffs - defendant signs memorandum of agreement - signature witnessed by Mufti - whether "third party" undue influence - whether plaintiffs knowingly concerned - CONTRACTS - Statute of Frauds - alleged oral agreement for sale of land where formal exchange of contracts contemplated - alleged acts of part performance

LEGISLATION CITED: Conveyancing Act 1919, ss.52A, 54A

CASES CITED: Actionstrength Ltd v International Glass Engineering IN. GL. EN Spa [2003] 2 AC 541
Allcard v Skinner (1887) LR 36 ChD 145
Blomley v Ryan (1956) 99 CLR 362
Bullock v Lloyds Bank Ltd [1995] 1 Ch 327
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Gingis v Mount Scopas Memorial College Ltd [1998] VSCA 49
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Johnson v Buttress (1936) 56 CLR 113
Lezabar Pty Ltd v Hogan (1989) 4 BPR 9498
Mohtar v Mohtar (1988) LSJS 377
Quek v Beggs (1990) 5 BPR 11,761
Peter Warren Properties Pty Ltd v Jalvoran Pty Ltd [2004] NSWSC 1149
Regent v Millett (1976) 133 CLR 679
Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] 2 AC 378
Stivactas v Michaeletos (No 2) [1994] ANZ Conv R 242
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Watkins v Coombes (1922) 30 CLR 180

PARTIES :
Mohammed Shikandar Khan and Farisha Khan - Plaintiffs
Mohammed Rizwan Khan and Roshanara Begum Sadiq - Defendants

FILE NUMBER(S): SC 5745/03

COUNSEL: Mr E.A. White - Plaintiffs
First Defendant in Person
Mr W.J. Carney - Second Defendant

SOLICITORS: Gray & Perkins - Plaintiffs
First Defendant in Person
Nada Alamali - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 10 DECEMBER 2004

5745/03 – MOHAMMED SHIKANDAR KHAN & ANOR v MOHAMMED RIZWAN KHAN & ANOR

JUDGMENT

1 The plaintiffs, Mohammed Shikandar Khan and his wife Farisha Khan, seek an order for specific performance of an alleged contract for the sale of a house property at 25 Hollows Place Bonnyrigg. They are the purchasers under the alleged contract. The vendors are the defendants, Mohammed Rizwan Khan and his mother Roshanara Begum Sadiq. In order to avoid confusion and without intending any disrespect, I shall refer to the parties in the manner in which they were described in the course of the trial, that is, “Shikandar”, “Farisha”, “Rizwan” and “Mrs Sadiq”. Although they share the name “Khan”, the plaintiffs are not related to the defendants.

2 The claim in the statement of claim for an order for specific performance is framed by reference to an alleged contract “dated 30…

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 Khan v Khan

Details

AGLC: Khan v Khan [2004] NSWSC 1189
Case: [2004] NSWSC 1189
Decision Date: 10 December 2004

CaseChat Overview and Summary

The plaintiffs sought a declaration that they were the owners of a property located at 544-546 Canterbury Road, Belfield, and an order that the defendant transfer the property to them. The defendant, who had been a close family friend of the plaintiffs, had been advised by a Mufti that he had a religious duty to honour an oral promise to sell the property to the plaintiffs. The defendant signed a memorandum of agreement in the presence of the plaintiffs, which was witnessed by the Mufti. The plaintiffs argued that the defendant had been subject to undue influence from the Mufti, a third party, when signing the memorandum, and that the agreement constituted part performance of an oral contract for the sale of land. The defendant contended that the plaintiffs were not entitled to relief because they had been knowingly party to the undue influence.

The court considered whether the Mufti's advice constituted third-party undue influence and whether the plaintiffs had knowingly participated in the undue influence. The court found that the Mufti's advice had not constituted undue influence because it had not interfered with the defendant's will. The plaintiffs had also knowingly participated in the undue influence because they had been aware of the Mufti's advice and had not objected to it. The court also considered whether the alleged oral contract for the sale of land constituted part performance, which would take the contract out of the operation of the Statute of Frauds. The court found that there had been no acts of part performance that were "unmistakeably referable" to the alleged oral contract.

The court held that the plaintiffs were not entitled to a declaration that they were the owners of the property or an order that the defendant transfer the property to them. The court found that the defendant had not been subject to undue influence from the Mufti and that the plaintiffs had knowingly participated in any undue influence. The court also found that there had been no part performance of the alleged oral contract for the sale of land. The plaintiffs' claim was dismissed with costs.

Orders