Micos Constructions Pty Ltd v Lamont

[2002] NSWSC 95

CITATION:	MICOS CONSTRUCTIONS PTY LTD v LAMONT [2002] NSWSC 95
FILE NUMBER(S):	SC 4826/01
HEARING DATE(S):	13 February 2002
JUDGMENT DATE:	13 February 2002
PARTIES :	Plaintiff: Micos Constructions Pty Limited Defendant: Christopher James Lamont
JUDGMENT OF:	Brownie AJ at 1

COUNSEL :	Plaintiff: W Hodgekiss Defendant: S Bell
SOLICITORS:	Plaintiff: Gary Cassim & Associates Defendant: Bede D Hickey
CATCHWORDS:	Action for specific performance of contract to surrender easements - no question of principle.
DECISION:	The Plaintiff has made out its case and is entitled to the declarations and orders sought in the Summons.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

4826/01

BROWNIE AJ

micos constructions pty limited v CHRISTOPHER JAMES LAMONT & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff is the owner of land known as Lot 392 in a particular deposited plan and the defendants are the owners of contiguous land known as Lot 391.

2 There are two easements, one of a right of way and the other for the provision of a water supply, each easement being for the benefit of Lot 391 and burdening Lot 392.

3 The plaintiff asserts that the defendant agreed to surrender these easements and it sues for specific performance of that agreement. The defendants resist the claim upon a number of different grounds.

4 It is necessary to say something about the background before coming to the evidence about the supposed agreement.

5 At one time, the land now contained in Lots 391 and 392 was a single parcel of land owned by the plaintiff. The plaintiff sold it to the defendants on terms that, generally speaking, provided for the defendants to subdivide the land and to resell Lot 392 to the plaintiff. That transaction involved the defendant in carrying out various works. Differences arose between the parties about these works and the parties entered into a deed dated 8 June 2001 recording the terms of their then agreement.

6 That deed provided, amongst other things, for the carrying out of defined work and for the payment of the sum of $25,000, called a bond, into the trust account of Mr Hickey, who is the defendants' solicitor. Broadly speaking, Mr Hickey was to retain the bond money until the works in question had been carried out by the defendants satisfactorily. The money was then to be paid out to the defendants, with the qualification that there was a separate provision as to $5000, in substance, earmarked for carrying out certain work regarding a particular fence.

7 The plaintiff then endeavoured to sell Lot 392. Mr Thode Projceski and his wife offered to buy it for $270,000 and the plaintiff accepted that offer, in the sense that it said it was willing to sell the land for that sum.

8 However, Mr Thode Projceski's brother, Bogoja Projceski, commonly called "Bob", then had discussions with each of Mr Micos, the plaintiff and Mr Lamont, the first defendant. Bob said, in substance, that his brother and the latter's wife wanted the easements surrendered. In general terms, Mr Lamont agreed to that, although there is now a disputed question about the terms of that agreement.

9 Then a Mr and Mrs Turner offered the plaintiff $320,000 and the plaintiff asked Mr and Mrs Projceski if they were willing to match that price. They declined, so that the plaintiff then wanted to sell the land to the Turners. However, the latter also said that they wanted the easements surrendered. Apparently, there was at least one other potential purchaser, but that person also wanted the easements surrendered, so that, it seems, if the plaintiff is to sell the land on advantageous terms, it needs to procure the surrender of the easements.

10 I turn back to the disputed facts. Over a period of time preceding the disputed events of July and August 2001, there had been dealings between the plaintiff and the defendants, including the respective solicitors for the parties.

11 The defendants' solicitor, Mr Hickey, is the father of the second defendant, Mrs Lamont. The plaintiff is represented by Mr Nicholas Cassim. Messrs Lamont, Cassim and Hickey addressed each other and spoke of each other by their given names. They seem to have had a good deal to do with each other generally in relation to the land in question.

12 The plaintiff says and I accept, that Mrs Lamont left things to her husband and her father. Her husband is an estate agent and her father was acting as solicitor for her and her husband. Mr and Mrs Lamont gave evidence of communications passing between themselves, and Mr Lamont and Mr Bob Projceski gave evidence of other conversations between those two persons concerning the basis upon which the defendants and/or Mr Lamont alone might take steps to surrender the easements.

13 One line of defence raised now is that any agreement that was made for the surrender of the easements contained an implied term that the surrender would be for the benefit of Mr Thode Projceski and his wife and only for their benefit, that if they did not buy Lot 392, the defendants had not agreed to surrender the easements.

14 On the evidence, it is plain beyond argument that no such term was ever communicated to Mr Micos, or to Mr Cassim, or to anyone else on behalf of the plaintiff. Indeed, it seems that it was not even communicated to Mr Hickey. That is, it was not an express term of the supposed agreement.

15 In these circumstances, I do not think it can be said either that the term now contended for was so obvious that it went without saying, or that it was reasonable and equitable, or that it was necessary to give business efficacy to the agreement; that is, assuming that there was an agreement otherwise binding and enforceable for the surrender of easements, I reject the contention that that agreement contained the implied term for which the defendants contend.

16 Another defence advanced which is, at least, initially more attractive, is that the plaintiff has not established that the defendants, as distinct from the first defendant alone, agreed to anything. They say that, on the evidence, I should find that the second defendant has not been shown to have entered into any relevant agreement.

17 I have mentioned the earlier transactions between the parties. The plaintiff points to these, as well as to the evidence concerning the transaction now in dispute and submits that the appropriate inference is that the second defendant left all relevant matters to her husband and her father, so that the inference should be drawn that she authorised them to act for her in all relevant respects.

18 In cross-examination of Mr Micos and in address, the defendants pointed to various documents said to indicate that the first defendant alone agreed to surrender the easements. Thus, for example, in his fax of 1 August 2001, addressed to Mr Cassim, but sent to Mr Micos, Mr Lamont said, "I am willing to approve the removal of easements...", and later, "I will instruct my solicitor to remove the mutually agreed easements".

19 On the other hand, as the plaintiff points out, Mr Hickey prepared a Deed of Release in the names of both defendants and even in the fax of 1 August, Mr Lamont referred to himself as having done some of the relevant works required to be done as if the obligation was his obligation alone.

20 If one viewed all this evidence in isolation, I think there would be much to be said for the defendants' proposition, but although Mrs Lamont swore two affidavits, she seems to have been at some pains to have avoided saying a word on this topic. Similarly, her husband said nothing on this topic in his affidavit and Mr Hickey swore no affidavit.

21 When the defendants conduct their litigation in this way and then invite me to find that Mrs Lamont did not agree to anything in any presently relevant sense and stress that the plaintiff bears the onus of proof, I find myself reminded of the dictum of Rich J in The Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49 when the three people who knew what the position was have chosen to say nothing on the subject, it is easy to be bold, particularly given the way in which Mrs Lamont, who described herself only as a "married woman", left everything presently relevant to her husband and to her father. I infer that she agreed generally, as the plaintiffs contend for.

22 Next, the defendants say that there was no intention demonstrated to enter into a legally binding agreement. They say, first, that Mr Lamont's fax of 1 August did not constitute an offer, but was a communication in the nature of a step in the negotiations that might ultimately, but did not actually, lead to the formation of a contract.

23 In that fax, Mr Lamont said:

“Dear Nick
Further to our last telephone conversation, I am willing to approve the removal of easements over rear sections of the above lot, relative to right of passage and right to pump water from dam, on the following conditions:-
1. All costs incurred in lifting of easements are to be totally at your expense, and
1. All guarantees and bonds that are agreed to under our current agreement are to be released in full prior to the lifting of the easements, and
3. The requirement for a two coat bitumen seal to be removed, as I have now laid concrete for the road and the bitumen seal is now not necessary.
Please confirm acceptance of the above. After which I will instruct my solicitor to remove the mutually agreed easements.
Yours faithfully
CHRIS LAMONT".

24 On 2 August, Mr Cassim faxed a letter to Mr Lamont, in which he said:

“Dear Chris
MICOS CONSTRUCTIONS PTY LTD SALE TO LAMONT
LOT 392 GLENNING ROAD, GLENNING VALLEY
We have your facsimile of 1st instant. Thank you for the same and we are instructed to advise that our client agrees to the terms.
Would you please advise Mr Hickey as soon as possible. As you are aware we are about to enter into a contract for the sale of the property. We suggest that the present Deed be varied.
As the writer will be absent for a week from tomorrow, could you ask Mr Hickey to contact the writer tomorrow.”

25 On 3 August, Mr Cassim faxed a letter to Mr Hickey, in which he said:

“Re Micos Constructions Pty Limited & Lamont.
Following recent discussions between the parties as to a variation of their present agreement is appears that a suitable deed would be required to do so. The writer will be absent from the office for a week from today. I will try to talk to you during the week to determine the terms.”

26 On 10 August, Mr Hickey faxed to Mr Cassim a letter which said only, "Enclosed is draft of proposed Deed of Variation"; there was a deed enclosed and on 20 August Mr Cassim wrote to Mr Hickey saying that the plaintiff approved the deed and had executed it. Mr Cassim enclosed the executed copy under the plaintiff's seal and requested the return of the Deed duly executed by the defendants.

27 Nothing further that is presently submitted happened for some weeks. In particular, the defendants did not at any stage at that time assert that there was no agreement reached, or that what had passed between the parties was incapable of constituting an agreement.

28 The defendants now say that Mr Hickey's letter of 10 August was not an offer. They stress that the letter spoke of a "proposed" deed. Further, they point to the suggested surrender of the easements being for the benefit of the Projceskis alone and point to the language used in this context and to the evidence of a subjective belief that there was no contract, that is, no binding contract at particular moments in time.

29 Counsel referred me to the decisions in Masters v Cameron (1954) 91CLR 353 and G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631. I proceed on the basis that these cases set out the relevant law.

30 I think that the evidence plainly establishes that the plaintiff through Mr Micos and through the correspondence of Mr Cassim as well as his conversations, wished and intended to enter into a legally binding agreement in the form of the deed sent by Mr Hickey to Mr Cassim and that the proper inference to be drawn is that the defendants also did. The suggestion that the contract was conditional upon Lot 392 being sold to the Projceskis seems to have been an afterthought and indeed, a very late afterthought.

31 The language used in some of the correspondence is capable of supporting the argument now contended for, but a fair reading of the whole of the document points, I think, in the direction the plaintiff contends for, but perhaps the strongest point in the plaintiff's favour on this issue lies in the failure of the defendants at the time to say the things they now say through their counsel.

32 Neither they nor Mr Hickey said what would have been obvious if what they now contend for correctly represented their attitude at the time, that is, something along the lines that they were prepared to negotiate, but did not wish to commit themselves, or bind themselves in any way.

33 In short and judging the matter objectively from the terms of the documents, read in the light of the surrounding circumstances, the appropriate finding is that the parties did intend to be bound and to be bound immediately no later than about 20 August 2001.

34 Next, the defendants say, in substance, that the agreement contended for is void for uncertainty and they point to the circumstance that the deed provided by Mr Hickey on 10 August and then executed and returned by the plaintiff does not deal with the matters mentioned in paragraphs numbered 2 and 3 in Mr Lamont's fax of 1 August. They point to some supposed ambiguity or uncertainty in the expression "guarantees and bonds".

35 It does seem to me that one can say that the deed is void for uncertainty. It might be that the deed ought not to be enforced except in conjunction with the performance by the plaintiff of the obligations mentioned in paragraphs 2 and 3 of Mr Lamont's fax of 1 August, but that is a different thing from saying that the deed is void for uncertainty.

36 Similarly, the circumstance that the document may not be entirely certain in its meaning does not mean it is void for uncertainty; see, for example, Australian Broadcasting Commission v Australasian Performing Rights Association (1973) 129 CLR 99 at 109 to 110.

37 Finally, the defendants relied upon the provisions of section 54A of the Conveyancing Act, saying that Mrs Lamont did not sign any note or memorandum of the kind that the section requires and that she did not authorise anyone else to do so on her behalf.

38 For the reasons given earlier, I find that Mrs Lamont left everything to her husband and her father. Given, particularly, her failure to give evidence on the subject, I infer that leaving everything to them included leaving it to them to sign any document on her behalf that she did not have to sign herself, such as a contract, or a document that had to be registered under the provisions of the Real Property Act.

39 The defendants - correctly, in my view - did not submit that the documents did not contain an appropriate note or memorandum of Mr Lamont and in the circumstances, there appears to be no note or memorandum given by either Mr Lamont or Mr Hickey, or both, on behalf of Mrs Lamont.

40 I conclude that the plaintiff has made out its case and is entitled to the declarations and orders sought in the summons.

41 It might be that, as the plaintiff conceded, it is appropriate to impose some terms, generally, along the lines of paragraphs 2 and 3 of Mr Lamont's fax of 1 August. So far, this has not been contended for.

42 I adjourn the matter to a date to be fixed.

Last Modified: 02/26/2002