P Barnes (as executor of the estate of the late Lawrence Barnes) v D Barnes (No 3)

The matter before the court involved an executor, P Barnes, seeking an order for possession of property against the co-executor, D Barnes. The dispute arose from a prior agreement that required D Barnes to vacate the property. The executor claimed that the agreement had been rescinded, varied, or replaced by a subsequent agreement for D Barnes to purchase the property. The court was tasked with determining whether the co-executor was ready, willing, and able to complete the purchase, given that a sale agreement was in place but the purchase had not been completed, leading to the termination of the contract.

The primary legal issues the court had to resolve included whether the prior agreement was rescinded or replaced, and if the co-executor was indeed ready, willing, and able to complete the purchase. The court examined the form of the sale contract and whether it contained an implied term requiring timely completion. It found that the sale agreement was in place, but since the purchase was not complete and the contract had been terminated, the co-executor was not ready, willing, and able to complete the purchase.

The court held that an order for possession of the property must be made in favour of the executor. However, the court dismissed the cross-claim for specific performance of the prior agreement, as there was no evidence of part performance or of the co-executor's ability to pay the purchase price. The court noted that the contract was no longer in effect, and thus an order for specific performance could not be granted. Additionally, the court refused the repeated adjournment applications made by the defendant during the hearing, finding that the defendant had not been given a fair opportunity to advance their case, and that the dictates of justice did not support further adjournments.