Radoman Pty Ltd v Vexapu Pty Ltd - [2008] NSWSC 8

CITATION: Radoman Pty Limited v Vexapu Pty Limited [2008] NSWSC 8

HEARING DATE(S): 19/11/07, 20/11/07

JUDGMENT DATE :
30 January 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Claims in summons to be dismissed. Judgment to be entered on cross-claim by consent

CATCHWORDS: CONTRACTS - requirement for writing under Statute of Frauds - contract for sale or other disposition of interest in land - where grantor of option to purchase land allegedly made oral promise to pay money to grantee if grantee surrendered its option entitlement by allowing a third party to purchase - whether alleged contract entailed "disposition" of "interest in land" - whether contract "for" such disposition - CONTRACTS - consideration - where written contract refers to consideration of $10 "the receipt of which is hereby acknowledged" - where no evidence of payment or receipt of $10 - whether contract fails for lack of consideration - CONTRACTS - formation of contract - conversation between individuals representing companies - whether words spoken created contract between companies

LEGISLATION CITED: Conveyancing Act 1919, ss 7, 54A
Law of Property (Miscellaneous Provisions) Act 1989 (UK)
Trade Practices Act 1974 (Cth), s 52

CATEGORY: Principal judgment

CASES CITED: Barba v Gas & Fuel Corporation of Victoria [1976] HCA 60; (1976) 136 CLR 120
Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Bristow v Manning (1988) 4 BPR 9337
Burnitt v Pacific Paradise Resort Pty Ltd [2006] QCA 309
Cocking v Ward (1845) 1 CB 858
Ex parte Hall; In re Whitting (1878) 10 Ch D 615
Finlayson v Campbell (1997) 8 BPR 15,703
Gas & Fuel Corporation of Victoria v Barba [1976] VR 755
Goldsbrough Mort & Co Ltd v Quinn (1910) 10 CLR 674
GPT RE Ltd v Lend Lease Real Estate Investments Ltd (2005) 12 BPR 23,217
Grey v Inland Revenue Commissioners [1960] AC 1
Himbleton Pty Ltd v Kumagai (NSW) Pty Ltd (1991) 29 NSWLR 44
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57
Lydia Court Pty Ltd v Panousis (unreported, NSWSC, 7 September 1973)
McCausland v Duncan Lawrie Ltd [1997] 1 WLR 38
Morris v Baron [1918] AC 1
Nweze v Nwoko [2004] EWCA Civ 379
Petelin v Deger Investments Pty Ltd [1976] HCA 4; (1976) 133 CLR 538
Phillips v Ellinson Brothers Pty Ltd [1941] HCA 55; (1941) 65 CLR 221
Powercell Pty Ltd v Cuzeno Pty Ltd [2003] NSWSC 600; (2003) 11 BPR 21,385
PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241
Riches v Hogben [1986] 1 Qd R 315
Soyfer v Earlmaze [2000] NSWSC 1068
Tasita Pty Ltd v Sovereign v State of Papua New Guinea (1991) 34 NSWLR 691

PARTIES: Radoman Pty Limited - Plaintiff
Vexapu Pty Limited - Defendant

FILE NUMBER(S): SC 5927/06

COUNSEL: Mr G A Sirtes - Plaintiff
Mr M R Elliott - Defendant

SOLICITORS: Cox West Lawyers - Plaintiff
McLaughlin & Riordan

IN THE SUPREME COURT
OF NEW SOUTH WALES

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: [2008] NSWSC 8
Decision Date: 30 January 2008

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Radoman Pty Ltd sought to enforce an alleged contract against Vexapu Pty Ltd. The dispute centred around an oral agreement where Radoman, the grantor of an option to purchase land, allegedly promised to pay Vexapu, the grantee, money if Vexapu surrendered its option entitlement by allowing a third party to purchase the land. The core legal issues revolved around whether the alleged contract constituted a "disposition of interest in land" under the Statute of Frauds and whether the contract was "for" such disposition. Additionally, the court considered whether there was sufficient consideration to support the contract.

The court examined the nature of the alleged contract and found that it did not constitute a "disposition of interest in land" as it was not a transfer of title or an interest in the land itself. Instead, it was an agreement to pay money contingent upon the surrender of an option. Furthermore, the court held that the contract was not "for" a disposition of land as the primary purpose was not the sale or transfer of land, but rather the payment of money upon the surrender of an option. The court also found that the written contract's reference to consideration of $10 was insufficient as there was no evidence of payment or receipt of this amount. Consequently, the court concluded that the contract failed for lack of consideration.

The court ruled in favour of Vexapu Pty Ltd, finding that the alleged contract did not satisfy the requirements of the Statute of Frauds nor was it supported by valid consideration. The court held that the conversation between the individuals representing the companies did not create a binding contract between the companies themselves. As a result, Radoman's claim was dismissed with no orders for costs.

Orders