Penrith RSL Club Ltd v Cameron - [2001] NSWSC 413

Reported Decision:
(2002) NSW ConvR 56-008

New South Wales

Supreme Court

CITATION: PENRITH RSL CLUB LTD v CAMERON & ANOR [2001] NSWSC 413 revised - 7/06/2001

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 4041/98

HEARING DATE(S): 14-15/05/01

JUDGMENT DATE:
23 May 2001

PARTIES :

Penrith RSL Club Ltd - Plaintiff
Robert John Cameron - First Defendant
Bruce William Cameron - Second Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : R. O'Neil - Plaintiff
J. Kelly SC, P. Saidi - Defendants

SOLICITORS: Adams & Partners, Penrith - Plaintiff
Coode & Corry, Penrith - Defendants

CATCHWORDS: VENDOR and PURCHASER - option to purchase "upon the grantor's death" - collateral assurance that widow would not be disturbed - one month after death purchaser assured widow in writing - "... no intention of exercising ... first Right of Refusal ..." - executors transmitted title to widow who occupied property for 7 years and died - purchaser sought to enforce option against her executors - Held - option no longer available for exercise - executors not affected by any equities arising out of dealings with grantor.

LEGISLATION CITED: Contracts Review Act 1980 (NSW)
Real Property Act 1900 (NSW).
Conveyancing Act 1919 (NSW)
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (NSW)

CASES CITED: Woodroffe v. Box & Anor (1954) 92 CLR 245;
Bogdanovic v. Koteff (1988) 12 NSWLR 472
Bahr & Anor v. Nicolay & Ors [No. 2] (1988) 164 CLR 604
Beneficial Finance Corporation Ltd v. Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510

DECISION: Proceedings dismissed: See [33]

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

WEDNESDAY 23 MAY 2001

4041/98 PENRITH RSL CLUB LTD v. ROBERT JOHN CAMERON & ANOR
JUDGMENT

1 HIS HONOUR: The plaintiff claims specific performance of its alleged entitlement to purchase from the defendants the land in Lot 1 Deposited Plan 18688, a house property at 147 Lethbridge Street Penrith. In the Amended Summons the plaintiff claims a declaration that it is entitled to purchase the property from the defendants for $306,666.77 and alternatively a declaration that it is entitled to require the defendants forthwith to make an offer to transfer the property at a price determined by taking and averaging the opinions of three valuers. In their Cross-claim the defendants seek relief against the agreement on which the plaintiff’s claim is founded under the Contracts Review Act 1980 (NSW) and equitable relief based on alleged unconscionable conduct of the plaintiff in obtaining the agreement.

2 Mr Hector Henry Cameron died on 24 February 1990. He was aged 87, he had been retired for many years and was an age pensioner. In 1988 he suffered from very poor vision, as was established by a report of Dr Tidswell an Ophthalmologist in 1980. His corrected visual acuity was 6/60 meaning that he needed to stand 6 metres away to read a chart which a person with normal sight could read at 60 metres. In 1983 he had surgery, but his right eye…

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.

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Details

Case: [2001] NSWSC 413
Decision Date: 23 May 2001

CaseChat Overview and Summary

Penrith RSL Club Limited was the vendor and Cameron was the purchaser of a property, with an agreement that included an option for Cameron to purchase the property "upon the grantor's death." The agreement also contained a collateral assurance that the widow of the grantor would not be disturbed. Shortly after the grantor's death, Cameron assured the widow in writing that there was "no intention of exercising... first Right of Refusal... at this stage." The widow subsequently occupied the property for seven years until her death, and Cameron, through his executors, sought to enforce the option against her executors. The dispute reached the court, which had to determine the enforceability of the option to purchase after the grantor's death and the effect of the collateral assurance on the widow's occupancy.

The central legal issues revolved around the enforceability of the option to purchase the property upon the grantor's death and the impact of the collateral assurance on the widow's right to occupy the property. The court needed to consider whether the collateral assurance constituted a binding agreement that precluded Cameron from exercising the option against the widow or her executors. Additionally, the court had to examine whether the executors were bound by any equities arising from the dealings between Cameron and the grantor.

The court held that the option to purchase was no longer available for exercise by Cameron. The collateral assurance given by Cameron to the widow was a binding agreement that prevented him from enforcing the option against her or her executors. The court found that the executors were not affected by any equities arising from the dealings between Cameron and the grantor. Therefore, the option to purchase was extinguished, and Cameron's attempt to enforce it against the widow's executors was unsuccessful.

No further orders were made by the court beyond the determination that the option to purchase was no longer available for exercise and that the executors were not bound by any equities arising from the dealings between Cameron and the grantor.

Orders