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Phung v Phung

Phung v Phung

Case [2019] NSWSC 117 19 February 2019

Contract Formation

Specific Performance

Unconscionable Conduct

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Phung v Phung [2019] NSWSC 117
Hearing dates: 4 February 2019 – 6 February 2019
Date of orders: 19 February 2019
Decision date: 19 February 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiff entitled to orders for specific performance

Catchwords: LAND LAW – contract for sale of land – claim for specific performance – whether oral contract for sale of land concluded – defendant subsequently signs written note referring to agreement to “transfer the ownership” of property – whether written note satisfies writing requirements under Conveyancing Act 1919 (NSW), ss 23C(1)(a) and 54A – doctrine of part performance – whether sufficient acts of part performance – plaintiff goes into possession, pays outgoings and undertakes renovations – sufficient acts of part performance established – whether specific performance should be refused on the basis of unfairness or hardship – specific performance granted
Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A
Supreme Court Act 1970 (NSW), s 68
Cases Cited: Baloglow v Konstantinidis (2001) 11 BPR 20,721; [2001] NSWCA 451
Cavallari v Premier Refrigeration Company Pty Ltd (1952) 85 CLR 20
Cooney v Burns (1922) 30 CLR 216
Dougan v Ley (1946) 71 CLR 142
Dowsett v Reid (1912) 15 CLR 695
Fragomeni v Fogliani (1968) 42 ALJR 263
Fullers’ Theatres Ltd v Musgrove (1923) 31 CLR 524
Harvey v Edwards, Dunlop & Co Ltd (1927) 39 CLR 302
Johnson v Buttress (1936) 56 CLR 113
Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184
Maddison v Alderson (1883) 8 App Cas 467
McBride v Sandland (1918) 25 CLR 69
Pipikos v Trayans (2018) 92 ALJR 880; [2018] HCA 39
Regent v Millett (1976) 133 CLR 679
Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310
Stewart v Kennedy (1890) 15 App Cas 75
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Tamplin v James (1880) 15 Ch D 215
Category: Principal judgment
Parties: Cam Vinh Phung (Plaintiff)
Cam Tai Phung (Defendant)
Representation:
Counsel:
Ms M Gaven (Plaintiff)
Mr K G Bennett (Defendant)
Solicitors:
Ma & Co Solicitors (Plaintiff)
Lincoln Legal (Defendant)

File Number(s): 2017/161958
Publication restriction: None

Judgment

Introduction

By an Amended Summons filed on 13 April 2018 the plaintiff, Cam Vinh Phung, seeks orders in the nature of specific performance of an alleged oral agreement for the sale of a residential unit in Swete Street, Lidcombe. The property is owned by the plaintiff’s younger brother, Cam Tai Phung, who is the defendant in the proceedings.
The alleged oral agreement is claimed to have been made in about January 2010. In short, the alleged agreement is to the effect that the defendant would transfer the title to the Swete Street property to the plaintiff in consideration of the plaintiff paying $180,000 to the defendant. The plaintiff has in fact made payments of approximately $180,000 to the defendant since January 2010.
The defendant disputes that any agreement for sale of the unit was made. He contends that…

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 Phung v Phung

Details

AGLC: Phung v Phung [2019] NSWSC 117
Case: [2019] NSWSC 117
Decision Date: 19 February 2019

CaseChat Overview and Summary

The case of Phung v Phung involved a dispute over the sale of a property, with the plaintiff seeking specific performance of an oral contract for the sale of land. The defendant counterclaimed for the return of a deposit paid by the plaintiff and sought an order for the plaintiff to vacate the premises. The matter was heard in the Supreme Court of New South Wales. The central legal issues in the case were whether an oral contract for the sale of land had been concluded and, if so, whether it was sufficiently evidenced in writing to satisfy the requirements of the Conveyancing Act 1919 (NSW). The court also had to determine whether the plaintiff had performed sufficient acts of part performance to enforce the oral contract, and whether specific performance should be granted despite potential unfairness or hardship to the defendant.

The court found that the parties had indeed reached an oral agreement to sell the property, and that the defendant’s subsequent written note referring to the agreement to “transfer the ownership” of the property satisfied the writing requirements under sections 23C(1)(a) and 54A of the Conveyancing Act. Additionally, the court ruled that the plaintiff had performed sufficient acts of part performance by going into possession of the property, paying outgoings, and undertaking renovations, thereby establishing the existence of the oral contract. The court also found that the doctrine of part performance applied in this case, as the plaintiff had acted in reliance on the oral agreement. Although the defendant argued that specific performance should be refused on the basis of unfairness or hardship, the court concluded that the circumstances did not warrant such a refusal.

Accordingly, the court granted specific performance of the oral contract, ordering the defendant to transfer the property to the plaintiff. The court also ordered the plaintiff to pay the defendant’s costs of the proceeding. This decision highlights the importance of ensuring that agreements for the sale of land are properly evidenced in writing to avoid disputes over their enforceability. It also underscores the application of the doctrine of part performance in cases where parties have acted in reliance on an oral agreement.

Orders