Tapp v Barnett [2021] NSWSC 1271

Supreme Court New South Wales

Medium Neutral Citation: Tapp v Barnett [2021] NSWSC 1271 Hearing dates: 1-2 June 2021; 25 August 2021 Date of orders: 6 October 2021 Decision date: 06 October 2021 Jurisdiction: Equity Before: Darke J Decision: Parties held to have entered into a binding contract for sale of certain land. Orders made in the nature of specific performance. Catchwords: CONTRACTS – formation of contracts – intention to be bound – plaintiffs as purchasers and defendant as vendor signed front page of standard form contract for sale of land – signing occurs in the presence of a licensed conveyancer acting for all parties – nine lots the subject of sale comprised approximately half of the property known as "Myoora" – purchase price expressed to be $1.00 – form of contract records all matters essential for a binding contract for sale of land – defendant contended that form of contract was in the nature of a draft and not intended to be binding – dispute as to what was said about document at time of signing – held that form of contract was not merely a draft – held that binding contract for sale was made when the parties signed form of contract – orders made for specific performance of contract ESTOPPEL – equitable estoppel – proprietary estoppel – defendant to inherit "Myoora" under mother's will subject to making payments of $500,000 – defendant tells plaintiffs that if they could provide the money to enable the payments to be made, she would transfer half of "Myoora" to them – plaintiffs make payment of $150,000 on basis that amount would be part of the buy in for half of "Myoora" – mother's will amended so gift of "Myoora" to defendant now subject to making payments of $350,000 – following mother's death plaintiffs assist defendant to make the payments of $350,000 – plaintiffs became borrowers with the defendant on a $340,000 loan and provided a further $10,000 – held that reference to a transfer of "half of Myoora" sufficiently certain to support an equitable estoppel – held it was reasonable for the plaintiffs to rely upon the defendant's assurances and assume or expect that the defendant would fulfil her promise – held that it would have been unconscionable for the defendant to depart from the assumption or expectation she created Legislation Cited: Conveyancing Act 1919 (NSW), s 60 Duties Act 1997 (NSW), s 274(1) Cases Cited: Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Ramsden v Dyson (1866) LR 1 HL 129 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Smith v Mansi [1963] 1 WLR 26 Sullivan v Sullivan (2006) 13 BPR 24,755; [2006] NSWCA 312 Category: Principal judgment Parties: Ben Tapp (First Plaintiff/First Cross-Defendant) Kylie Elizabeth Barnett (Second Plaintiff/Second Cross-Defendant) Jan Elizabeth Barnett (Defendant/Cross-Claimant) Representation: Counsel: Dr E Peden SC (Plaintiffs/Cross-Defendants) Mr A W Smith with Mr M J Davis (Defendant/Cross-Claimant)