Simon Konstantinidis v Theo Baloglow - [2000] NSWSC 1229

CITATION: Simon Konstantinidis v Theo Baloglow & Ors [2000] NSWSC 1229

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4656 of 1999

HEARING DATE(S): 4, 5, 6 and 8 December 2000

JUDGMENT DATE: 21 December 2000

PARTIES :

Simon Konstantinidis (Plaintiff)
Theo Baloglow (First Defendant)
Steven Baloglow (Second Defendant)
Christopher Baloglow (Third Defendant)
Lynette Baloglow (Fourth Defendant)
Carlisle Developments Pty Ltd (Sixth Defendant)
Ricvale Holdings Pty Ltd (Seventh Defendant)
Balkon Pty Ltd (Eighth Defendant)

JUDGMENT OF: Bergin J

COUNSEL : B Oslington SC/ G Segal (Plaintiff)
TGR Parker (First Defendant)
D Oliveri (Solicitor) (Second, Third, Fourth Defendants)

SOLICITORS: Charles G Roth & Co (Plaintiff)
Gordon & Johnstone (First Defendant)
Oliveri Attorneys (Second, Third, Fourth Defendants)

CATCHWORDS: CONTRACTS - Whether a concluded agreement was reached at a meeting between solicitors for the parties - Whether solicitors were lawfully authorized to reach agreement - Whether the handwritten document created at the meeting alone or in conjunction with a letter was a sufficient memorandum or note to satisfy s. 54A of the Conveyancing Act 1919 - Whether the plaintiff is entitled to specific performance of the agreement.

LEGISLATION CITED: Conveyancing Act 1919 ss 23C and 54A

CASES CITED: ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Butts v O'Dwyer (1952) 87 CLR 267
Hall v Busst (1960) 104 CLR 206
Hubert v Treharne [1842] 3 Man & G 743
Leeman v Stocks [1951] 1 Ch 941
Masters v Cameron (1954) CLR 353
Neill v Hewens (1953) 89 CLR 1
Parbury Henty & Co Pty Ltd v General Engineering & Agencies Pty Ltd (1973) 47 ALJR
Pirie v Saunders (1960) 104 CLR 149
Thirkell v Cambi [1919] 2 KB 590
Tonitto v Bassal (1992) 28 NSWLR 564

DECISION: Binding and enforceable agreement. Specific performance ordered.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BERGIN J
DATE: THURSDAY 21 DECEMBER 2000
4656/99 - KONSTANTINIDIS v BALOGLOW & ORS
JUDGMENT

Introduction

1    The plaintiff, Simon Konstantinidis seeks an order for specific performance of a contract he claims was entered into by him and the first defendant, Theo Baloglow on 28 July 1999.
2 The main issues for determination in the proceedings are whether the parties reached a binding agreement on 28 July 1999 and if so whether it is unenforceable by reason of ss 23C and 54A of the Conveyancing Act 1919 (NSW).
3    There are eight defendants. The second, third and fourth defendants are the first defendant’s three children in whose name a property at 58 Whistler Street, Manly is registered. The fifth to eighth defendants inclusive are companies utilised by the plaintiff and the first defendant to purchase, develop and sell properties pursuant to the business of a partnership between them (the Partnership).

Background

4    The partnership commenced in about early 1995. There was no written partnership agreement and the plaintiff and first defendant used Konstan Lawyers as solicitors for the partnership. That is a firm of which the plaintiff is apparently a principal.
5    One of the properties of the…

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: [2000] NSWSC 1229
Decision Date: 21 December 2000

CaseChat Overview and Summary

Simon Konstantinidis filed a case against Theo Baloglow, seeking specific performance of an alleged agreement for the sale of property. The dispute revolves around whether a concluded agreement was reached at a meeting between the solicitors for both parties, whether the solicitors were lawfully authorized to reach such an agreement, and if the handwritten document created at the meeting, either alone or in conjunction with a letter, constitutes a sufficient memorandum to satisfy section 54A of the Conveyancing Act 1919. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court involved the interpretation of the terms of the agreement between the parties, the authority of the solicitors to enter into the agreement, and the sufficiency of the written memorandum under the relevant statute. Specifically, the court had to determine if the handwritten document, created at the meeting, in conjunction with a letter sent later, constituted a sufficient note or memorandum under section 54A of the Conveyancing Act 1919. Additionally, the court needed to decide if the plaintiff was entitled to specific performance of the agreement.

The court found that the meeting between the solicitors did not result in a concluded agreement, as the terms were still subject to further negotiation and confirmation by the parties. The court also determined that the solicitors were not lawfully authorized to reach an agreement on behalf of their clients. Regarding the written memorandum, the court held that the handwritten document alone, and even in conjunction with a subsequent letter, did not satisfy the requirements of section 54A of the Conveyancing Act 1919. Consequently, the court ruled that the plaintiff was not entitled to specific performance of the agreement.

Orders