Phung v Phung

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.