Pipikos v Trayans

[2016] SASCFC 138

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

PIPIKOS v TRAYANS

[2016] SASCFC 138

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)

16 December 2016

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - MATTERS NOT GIVING RISE TO BINDING CONTRACT - VAGUENESS AND UNCERTAINTY - SALE OF LAND

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - STATUTE OF FRAUDS, SECTION 4 - CONTRACTS TO WHICH APPLICABLE - CONTRACTS FOR SALE OR DISPOSITION OF LAND OR ANY INTEREST IN LAND

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - STATUTE OF FRAUDS, SECTION 4 - NON-COMPLIANCE WITH STATUTE - DOCTRINE OF PART PERFORMANCE - WHAT ACTS CONSTITUTE PART PERFORMANCE - ACTS NOT CONSTITUTING PART PERFORMANCE

Appeal against decision of a Judge of the District Court.

The appellant is the former brother in law of the respondent.  The appellant and his wife, and the respondent and her husband agreed to purchase a property together (the new property).  The appellant paid the contractual deposit as well as the balance of the purchase price and the transaction costs (collectively 'the settlement costs').  The appellant claims that because the respondent and her husband could not afford to contribute to the settlement costs they agreed that the respondent would sell them a half interest in another property owned by the respondent (the respondent's property).  The value of that half interest in the respondent's property was slightly higher than the amount owed by virtue of the agreement so the appellant would pay the respondent $8000.

The trial Judge found in favour of the respondent. Her Honour found that while there were discussions to the effect outlined above, the agreement was not concluded. The Judge also found that the discussions forming the basis of the agreement were between the appellant and the respondent's husband (the appellant's brother) and the respondent was not party to those discussions. The Judge also found that, if there was an oral agreement, it was not enforceable because there was no part performance and the agreement did not comply with the relevant statutory requirements.

The appellant appeals the factual finding that the agreement was not fully concluded. the appellant accepts that the respondent was not a party to the discussions forming the basis of the agreement. Yet, the appellant appeals on the basis that the respondent had knowledge of the agreement, and on the basis of that knowledge executed the transfer by which the property was purchased. The appellant argues that a handwritten note of the respondent, vague in its terms and authored some considerable time after the transaction, is evidence of the respondent's knowledge and acceptance of the overarching agreement and also fulfills the statutory requirements that a contract for the sale of land be in writing.

Held per Kourakis CJ (Kelly and Hinton JJ agreeing), dismissing the appeal:

1.  There was an agreement between the appellant and the  respondent.  It is improbable that the appellant would have agreed to purchase the new property with…