Kimball v Brien

[2007] NSWSC 1448

CITATION:	Kimball v Brien [2007] NSWSC 1448
HEARING DATE(S):	27 November 2007
JUDGMENT DATE :	27 November 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Specific performance ordered.
CATCHWORDS:	EQUITY [379] - Equitable remedies - Specific performance - The jurisdiction in general - General principles - Enforcement by purchaser.
LEGISLATION CITED:	Conveyancing Act 1919 s 54A Supreme Court Rules 1970 Part 33 r 6
PARTIES:	Robert Richardson Kimball (P) Richard Campbell Brien as Trustee for the Estate of Donald Roy Tait (D1) Commonwealth Director of Public Prosecutions (D2) Deputy Commissioner of Taxation (D3) Kevin Victor Crompton and Catherine Mary Crompton (D4)
FILE NUMBER(S):	SC 4127/91
COUNSEL:	J F Merewether, Solicitor (P) No appearances (Ds)
SOLICITORS:	Merewether & Co (P) Self represented (D1) Director of Public Prosecutions (Cth) (D2) Australian Government Solicitor (D3) Munro Egan Simpson (D4)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 27 NOVEMBER 2007

4127/91 Robert Richardson Kimball v Richard Campbell Brien as Trustee of the ESTATE OF DONALD ROY TAIT & Ors

JUDGMENT

1 HIS HONOUR: These are unusual proceedings. They are proceedings for the specific performance of a contract for the sale of land in New South Wales made in a gaol in Thailand in 1986. They may be said to be an illustration of Murphy’s law, since almost anything that could have gone wrong with any of the parties to the proceedings has gone wrong.

2 The plaintiff is Robert Richardson Kimball. The agreement was that Donald Roy Tait would sell to Mr Kimball two pieces of land in New South Wales (together called “the property”) for the sum of $140,000, to be paid in instalments.

3 The contract itself is a very curious document, since all the paragraphs in it, whether recitals or truly substantive provisions, are preceded by the word “whereas”. It is quite difficult on the face of the document to determine which of its provisions are to be construed as executory provisions of a contract imposing obligations on the parties.

4 However, it does not much matter, since to any extent that the written agreement does not record the obligations which the parties undertook, it makes it plain that they did undertake such obligations to each other orally before the document was entered into. Thus, insofar as it does not itself operate as a contractual document, it will operate as a note or memorandum of the contract for the purposes of s 54A of the Conveyancing Act 1919, so as to render the contract enforceable.

5 One thing about which there is no doubt in the circumstances of this case is that the contract was made between these two men in the terms claimed by the plaintiff. The evidence of both the vendor, Mr Tait, and the purchaser, Mr Kimball, is available and both give evidence to the same effect. Furthermore, the evidence of both is to the effect that the contract was carried out by the payment of all the promised instalments. The only way in which it remains to be carried out is by the transfer of the property to the plaintiff. The defendant is still alive and is somewhere in Thailand. He agrees to an order for the transfer of the property.

6 The proceedings were commenced by summons on 12 August 1991. They name, as the first defendant, Richard Campbell Brien as trustee for the estate of Donald Roy Tait. Mr Tait was bankrupt at the time that the summons was taken out. Yet another of the things that has gone wrong so far as persons involved in these proceedings are concerned is that Richard Campbell Brien, although a trustee in bankruptcy, himself went bankrupt on 14 February 2000. The Official Trustee in Bankruptcy thereupon became the trustee of Mr Tait’s bankrupt estate. However, in fact there was by that time no extant bankruptcy of Mr Tait, since a bankruptcy search which is in evidence reveals that he was discharged from bankruptcy by effluxion of time on 27 October 1993.

7 No investigation need be made as to whether Mr Tait or his bankrupt estate is entitled to the property, since both Mr Tait, in whose name the titles are registered, and the Official Trustee in Bankruptcy, who represents that estate, consent to the making of the orders now sought.

8 Whilst Richard Campbell Brien is not the correct first defendant in the proceedings, I do not propose that money should be wasted amending the proceedings in this regard in light of the consents which I have just noted.

9 The second defendant named was the Commonwealth Director of Public Prosecutions, who at some stage made some claim upon the property. However, he should be taken to have been removed from the proceedings by an order that is of record in the Court. As with so many things in these proceedings, the order was irregular. It ordered that:

“These proceedings be discontinued as against the second defendant.”

The order should have been either that the proceedings be dismissed as against the second defendant or that the plaintiff have leave to discontinue as against the second defendant, followed by a notice of discontinuance. The order in this curious form was entered on 22 November 1991 and, however irregular it may be, there is no doubt that both the plaintiff and the second defendant have regarded the second defendant as no longer a party to the proceedings as from that time.

10 The third defendant is the Deputy Commissioner of Taxation. He also claimed some interest in the property at some stage, but the Australian Government Solicitor on his behalf has now indicated that the third defendant submits to the orders sought by the plaintiff.

11 The two persons named as fourth defendant are Kevin Victor Crompton and Catherine Mary Crompton. What has gone wrong so far as Mr Crompton is concerned is that he was crushed to death in 1993. Whilst his wife, Catherine Mary Crompton, was appointed his executor, his estate was so small as not to justify probate being taken out.

12 The Cromptons placed caveats on the two titles. They were the vendors of the property to Mr Tait and made a claim for a comparatively small sum of unpaid purchase money. However, that claim is not persisted with, the caveats have long since been removed and Mrs Crompton does not object to the making of the orders sought by the plaintiff.

13 The next thing which it should be noted went wrong with the proceedings is that on 28 June 1993 Registrar Berecry dismissed the proceedings under the then Part 33 r 6 of the Supreme Court Rules 1970. The proceedings remained in abeyance until 2006 when Mr J Merewether, who today appears for the plaintiff, was appointed as his solicitor.

14 The plaintiff has deposed that he was not until recently aware that the titles to the property had not been vested in him. He now seeks to set aside the order of dismissal and to have an order for specific performance made in his favour. In the circumstances, it is in my view appropriate that the order of dismissal be set aside, so that the proceedings should now be regarded as again on foot. Nothing remains to be done by the plaintiff to entitle him to performance of the contract by the transfer of the property to him. In the circumstances, I propose to declare that he is entitled to have the contract specifically performed and carried into effect.

15 Mr Tait is in Thailand and difficult to contact. Whatever the interest of his bankruptcy trustee may have been or now is, Mr Tait is the person appropriate to execute the transfer of the property because it is he who is the registered proprietor on the titles, the bankruptcy trustee never having been registered. In the circumstances, it is my view that the easiest course is to appoint the Registrar of the Court to execute the transfer and any other necessary documents on Mr Tait’s behalf in order for the property to be transferred to the plaintiff.

16 I am asked by the plaintiff, and intend, to make orders declaring that the Deputy Commissioner of Taxation, the estate of Kevin Victor Crompton (deceased) and Catherine Mary Crompton have no interest in the property.

17 The orders I propose to make are an order setting aside the order of dismissal; a declaration that the plaintiff is entitled to specific performance of the contract; an order that the Registrar of the Court execute the necessary documents; a declaration that the Deputy Commissioner and the Cromptons have no interest in the property; and liberty to apply on two days’ notice, so that if there are any problems in the conveyancing department they can be met.

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