JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	1, 2, 3, 17 June 2021
DATE OF JUDGMENT:	5 May 2022
CASE MAY BE CITED AS:	Merrett v Mackay
MEDIUM NEUTRAL CITATION:	[2022] VSC 220

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CONTRACT – Whether there was an oral contract of sale of land – Whether any oral contract of sale of land is enforceable notwithstanding its non-compliance with s 126 of the Instruments Act 1958 (Vic) or s 53(1)(a) of the Property Law Act 1958 (Vic) – Whether there are sufficient acts of part performance – Held that there was an oral contract for the sale of land – Held that payment of money for the purchase of the land is not sufficient act of part performance – Held that there was no sufficient act of part performance – Held that the oral contract of sale of land is not enforceable – Khoury v Khouri (2006) 66 NSWLR 241 – Vlahos Pty Ltd v Vlahos [2017] VSCA 166.

EQUITY – Proprietary estoppel – Whether representations that could found a proprietary estoppel were made – Held that no representation was made to the effect that plaintiff would receive property after working on the property – Held that a representation that the land would be transferred after payment of money is not sufficient – Held that a “secondary” representation of “something more” is required – Held that there is no relevant representation to found a proprietary estoppel - Actionstrength Ltd v International Glass Engineering IN.GL.EN SpA [2003] 2 AC 541 – Agius v Sage [1999] VSC 100 – Collin v Holden [1989] VR 510 – Powercell Pty Ltd v Cuzeno Pty Ltd (2004) 11 BPR 21,429.

TRUST – Whether there is a resulting trust, common endeavour or common intention constructive trust – Requirements for a common intention constructive trust – Referred to Shepherd v Doolan [2005] NSWSC 42 – If there is a resulting trust or constructive trust, what remedy ought to be granted – Whether there is unconscionable conduct on the part of the claimant – Whether there was laches or delay – Held that there is no resulting trust and no common endeavour constructive trust – Held that there was common intention between the relevant parties for beneficial ownership in the property to pass from one party to the other – Held that payment of money for the purchase of a property can be a relevant detriment for a common intention constructive trust – Held that there is a common intention constructive trust – Held that there was no unconscionable conduct – Held that the defence of laches fails – Held that a lesser remedy than a declaration of a constructive trust over the whole property ought to…

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 Merrett v Mackay

Details

AGLC: Merrett v Mackay [2022] VSC 220
Case: [2022] VSC 220
Decision Date: 5 May 2022

CaseChat Overview and Summary

In the matter of Merrett v Mackay, the Supreme Court of Victoria was tasked with determining whether an oral contract for the sale of land existed between the parties and if it was enforceable. Additionally, the court had to decide if any form of equitable relief, such as proprietary estoppel or a constructive trust, could be granted in lieu of enforcing the oral contract.

The primary legal issue before the court was whether an oral contract for the sale of land was formed and if it could be enforced despite not being in writing, as required by statute. The court needed to assess if any acts of part performance could render the oral contract enforceable. Furthermore, the court considered if any representations could give rise to proprietary estoppel or if there was a common intention constructive trust that could be enforced.

The court found that an oral contract for the sale of land did exist between the parties. However, it held that the mere payment of money for the purchase of land was not a sufficient act of part performance to enforce the oral contract. The court concluded that there was no sufficient act of part performance, rendering the oral contract unenforceable. Additionally, the court determined that no representations had been made that could found a proprietary estoppel. While there was a common intention between the parties for beneficial ownership to pass, the court held that a common intention constructive trust could be established. The court found that the defendant had not acted unconscionably, and the defence of laches did not apply. Ultimately, the court held that a lesser remedy than a declaration of a constructive trust over the whole property should be granted.

The court ordered that there be a constructive trust over a portion of the property, reflecting the common intention of the parties and the contributions made by the plaintiff.

Orders