Tracey v Osland - [2021] NSWSC 1074

Supreme Court

New South Wales

Medium Neutral Citation: Tracey v Osland [2021] NSWSC 1074
Hearing dates: 25 August 2021
Date of orders: 25 August 2021
Decision date: 25 August 2021
Jurisdiction: Equity
Before: Kunc J
Decision:
Orders made for specific performance of contract

Catchwords:
LAND LAW — Conveyancing — Requirements of writing — Agreement to create or dispose of interest in land — Sibling co-owners of the land — Sister’s solicitor accepts brother’s offer to purchase sister’s interest set out in letter from brother to solicitor — Whether specific performance should be granted

Legislation Cited:
Conveyancing Act 1919 (NSW)

Cases Cited:
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146; [1964] HCA 61

Category: Principal judgment
Parties: Vivien Tracey (Plaintiff)
Edward Osland (Defendant)
Representation:
Counsel:

L Fermanis (Plaintiff)

Solicitors:
Giles Payne & Co (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2020/78599
Publication restriction: No

EX TEMPORE Judgment (Revised)

This is an application for specific performance of an alleged contract for the sale of an interest in a property in Paddington (the Property). Without any disrespect intended I shall refer to the parties by their given names.
The plaintiff, Vivien, and the defendant, Edward, are sister and brother. They are the executors and beneficiaries in equal shares as tenants in common of the estate of their late mother, Gloria. The Property has passed to them under Gloria’s will made on 30 August 2000, probate of which was granted to them by order of this Court on 11 May 2011.
The evidence discloses that there were discussions in 2018 between Vivien and Edward, in which Edward agreed to buy Vivien’s interest in the Property for $1.25 million. Those discussions culminated in this letter from Edward to Vivien’s solicitor of 31 July 2018:

“Dear Mr Giles,
I refer to your letter dated 27 June 2018 regarding my sister's interest in XX XXXX Street, Paddington, New South Wales.
It is regretted that the full funds of $1,250,000 as requested are not immediately available. However, I have a proposal for consideration. Under this proposal the payment of that amount of $1,250,000 will be made in four stages. The first three stages will provide $1,000,000.
A bank cheque for $50,000 is enclosed as a stage one payment.
Subject to the acceptance of this proposal a second stage payment of $50,000 will be made within 15 business days of the receipt of advice of the acceptance of this proposal.
It is trusted that these payments will provide immediate relief of the liquidity shortage.
The third stage will be $900,000 payable within approximately 45 business days of the receipt of advice of the acceptance of this proposal.
The fourth stage will be the payment of the balance of $250,000 in late 2019.
Please note that this proposal will allow an orderly realisation of assets to provide the total funds required.
Please advise whether this proposal is acceptable so that action…

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: [2021] NSWSC 1074
Decision Date: 25 August 2021

CaseChat Overview and Summary

The case of Tracey v Osland involved siblings who were co-owners of a property. The dispute arose when the brother made an offer to purchase the sister's interest in the property, which was accepted by the sister's solicitor. The legal issue at hand was whether the court should grant specific performance, compelling the parties to carry out the agreement to sell the interest in the land. The court needed to determine whether the requirements for a written agreement under the Conveyancing Act were met, considering the circumstances of the case.

The court examined the nature of the agreement and the legal requirements for such agreements under the Conveyancing Act. It was established that an agreement to create or dispose of an interest in land generally requires writing, but there are exceptions. The court considered whether the acceptance of the offer by the sister's solicitor constituted sufficient writing to satisfy the Act. The court also assessed whether there was an enforceable contract between the siblings that could lead to specific performance.

In reaching its decision, the court found that the requirements for a written agreement were satisfied as the acceptance of the offer by the sister's solicitor was in writing. The court concluded that the acceptance was valid and constituted a written agreement under the Conveyancing Act. Consequently, the court ruled that specific performance should be granted, compelling the parties to fulfill the terms of the agreement to sell the interest in the property.

The final order of the court was that specific performance should be granted, compelling the parties to carry out the agreement to sell the interest in the property. The court determined that the requirements for a written agreement were met, and as such, the agreement was enforceable. The court's decision ensured that the agreement to purchase the sister's interest in the property would be fulfilled, providing clarity and resolution to the dispute between the siblings.

Orders