Lahoud v Lahoud (No 2) - [2005] NSWSC 1019

CITATION:
Lahoud & Anor v Lahoud & Ors (No 2) [2005] NSWSC 1019

HEARING DATE(S): 22 July, 2005

JUDGMENT DATE :

13 October 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Palmer J

DECISION:
Short Minutes of Order settled.

CATCHWORDS:
REAL PROPERTY - CONTRACT - TITLE - The obligation in an "open contract" to transfer land carries implied term that land shall be free of encumbrances - SPECIFIC PERFORMANCE - Obligation to execute further deed - how performed.

CASES CITED:
- Gloag & Miller's Contract, In re (1883) 23 Ch D 320
- McGrory v Alderdale Estate Company Ltd [1918] AC 503
- Timmins v Moreland Street Property Co Ltd [1958] Ch 110
- "Dart on Vendors & Purchasers" (7th Ed) Vol 1, p.240
- Stonham "The Law of Vendor & Purchaser", paras 202, 203

PARTIES:
Joseph Lahoud - First Plaintiff/First Cross Defendant
Joseph Lahoud & Associates Pty Ltd - Second Plaintiff/Second Cross Defendant
Victor Lahoud - First Defendant/First Cross Claimant
Castle Constructions Pty Ltd - Second Defendant/Second Cross Claimant
Solidare Pty Ltd - Third Defendant/Third Cross Defendant

FILE NUMBER(S):
SC 3606/01

COUNSEL:
S.D. Epstein SC - Plaintiffs/Cross Defendants
L.V. Gyles - Defendants/Cross Claimants

SOLICITORS:
Baron & Associates - Plaintiffs/Cross Defendants
Aitken McLachlan Thorpe - Defendants/Cross Claimants

LOWER COURT JURISDICTION:

Introduction

1 On 30 May 2005 I delivered judgment in these proceedings: [2005] NSWSC 509. I held that the Plaintiffs were entitled to specific performance of an agreement contained in Terms of Settlement whereby prior litigation between the parties had been resolved. I directed that the parties bring in Short Minutes of Order reflecting the reasons for judgment.

2 The parties brought in radically different proposed Short Minutes of Order and a further hearing was necessary.

3 I will assume that the reader of this judgment is familiar with the issues and the history of the matter as set out in my earlier judgment. As in the earlier judgment, for the sake of convenience and without intending any disrespect, I will refer to Messrs Joseph and Victor Lahoud by their first names and reference to each of them will include reference to their respective companies which are party to these proceedings.

Whether mortgage must be discharged

4 The first issue to be resolved depends upon the construction of certain terms of the Terms of Settlement. In the Terms of Settlement, “the First Applicant” means Joseph, “the First Respondent” means Victor, and the Second and Third Respondents are Victor’s companies.

5 Clause 2 of the Terms of Settlement provided:

“The Second Respondent is to pay to the First Applicant the sale proceeds of Unit 4 at 135-145 Sailors Bay Road, Northbridge (being the land contained in Folio Identifier 4/SP 53342) and a three bedroom unit at 135-145 Sailors Bay Road, Northbridge presently owned by the Second Respondent, which unit shall be nominated by the First Applicant by 4pm on Thursday, 15 February 2001 but shall not include unit 18 or 24. The First and Second Applicant and the First and Second Respondent…

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 Lahoud v Lahoud (No 2)

Details

AGLC: Lahoud v Lahoud (No 2) [2005] NSWSC 1019
Case: [2005] NSWSC 1019
Decision Date: 13 October 2005

CaseChat Overview and Summary

The case of Lahoud v Lahoud (No 2) involved the parties, Lahoud and Lahoud, in a dispute relating to real property. The dispute centred on the terms and obligations under an open contract for the sale of land and the implications for the transfer of title. The matter was heard in the Supreme Court of Victoria. The key issue before the court was whether the obligation in an open contract to transfer land carried an implied term that the land shall be free of encumbrances. Additionally, the court needed to determine the obligations of the parties in relation to executing a further deed and how specific performance should be enforced in this context.

The court considered the nature of open contracts and the implied terms that accompany them. It was held that an open contract to transfer land does indeed carry an implied term that the land shall be free of encumbrances at the time of transfer. The court further examined the requirement for executing a further deed and how this should be performed to satisfy the terms of the contract. It was determined that the party seeking specific performance must execute the deed in a manner consistent with the terms of the contract and in a way that is fair and equitable to the other party. The court emphasised that the execution of the deed must be in accordance with the contract terms, and any procedural requirements must be followed to ensure the transfer of title is properly executed.

The court's reasoning led to the conclusion that the defendant was required to execute the further deed in a manner that was in accordance with the terms of the contract and the obligations implied therein. The court ordered that specific performance be granted, directing the defendant to execute the necessary deed to transfer the land to the plaintiff. This order was made with the condition that the deed be executed in a manner consistent with the terms of the open contract, ensuring that the land was transferred free of any encumbrances as implied by the nature of the contract. The court's decision provided clarity on the obligations under open contracts and the requirements for executing deeds in such contexts.

Orders