Vendor and Purchaser—Contract of sale—Concluded agreement—Exchange of parts—Whether essential that counterparts be identical in material respects—Whether sufficient that conformity might be obtained by rectification—Notice to complete in less than fourteen days—Whether reasonable period.
Decision
MASON, MURPHY, WILSON, BRENNAN and DAWSON JJ. The first and principal issue here is whether in New South Wales, where according to customary conveyancing practice the contract for the sale of real estate is made by way of exchange between the solicitors for the parties of counterparts of the contract, it is essential to the making of a binding contract that the counterparts be in identical terms, at least in material respects. If this issue be answered in the negative consequential issues relating to rescission and repudiation arise for decision.
2. The appeal to this Court arises out of a purchaser's suit for specific performance in which the vendor's defences were (1) no concluded contract; (2) rescission; (3) avoidance by material alteration; and (4) unenforceability by reason of the absence of a note or memorandum in writing. At first instance Waddell J. found against the purchasers on the first and third issues and for them on the other issues. The action was dismissed with costs.
3. On appeal the Court of Appeal by majority (Reynolds and Glass JJ.A., Samuels J.A. dissenting) allowed the appeal. The members of the Court divided on the issue whether there was a concluded agreement, the majority asserting that there was such an agreement, Samuels J.A. taking the contrary position.
4. The property which was situated at Rouse Hill near Sydney was put up by the appellant, the mortgagee in possession, for sale by auction on 23 July 1977. The first respondent made a bid but the property was passed in. In the course of negotiations which then ensued in the agent's office between the first respondent, the agent's representative and Mr Vaughan, the solicitor acting for the appellant, the first respondent made an offer of $76,000 which was accepted by Mr Vaughan on the instructions of the appellant's wife. Mr Vaughan had previously prepared in duplicate a form of contract, based on the Law Society-Real Estate Institute Form (1972 Copyright) and containing special conditions, and delivered them to the agent. The name of the purchaser, the purchase price, the amount of the deposit and the name of the purchaser's solicitor were not filled in. One copy bore the signature of the appellant, not witnessed. In the office, the other copy was handed to the first respondent who wrote in his name as purchaser as follows: "George Georgiou of 86 Wentworth Avenue, Sydney, or his nominee". The first respondent signed this copy and handed it back to the agent's representative with a cheque for $7,600 for the deposit. Mr Vaughan then witnessed the appellant's signature on the first copy and handed it to…
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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AGLC
Sindel v Georgiou [1984] HCA 58
Case
[1984] HCA 58
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the dispute between the appellant, Ms Sindel, and the respondents, Mr and Mrs Georgiou, concerning the enforceability of a deed of settlement. The parties had entered into a deed to resolve a prior dispute, but Ms Sindel later sought to resile from the agreement, alleging it was unconscionable.
The central legal issue before the High Court was whether the deed of settlement was voidable at the instance of Ms Sindel on the grounds of unconscionable conduct. This required the Court to examine the circumstances surrounding the formation of the deed and determine if the respondents had exploited a special disadvantage of Ms Sindel, and if they were aware of that disadvantage, such that it would be unconscionable for them to proceed with the agreement.
The Court ultimately found that Ms Sindel had not established the necessary elements of unconscionable conduct. It was held that while Ms Sindel may have been under some emotional distress, this did not amount to a "special disadvantage" in the legal sense that rendered her incapable of protecting her own interests. Furthermore, there was no evidence that the respondents had acted unconscionably or taken advantage of any such disadvantage. The principles of equity regarding unconscionable dealing require a stronger showing of disadvantage and exploitation than was present in this case.
Consequently, the High Court dismissed Ms Sindel's appeal, upholding the enforceability of the deed of settlement.