Smart v Smart [2023] NSWSC 307

Supreme Court New South Wales

Medium Neutral Citation: Smart v Smart [2023] NSWSC 307 Hearing dates: 20-21 February 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Equity Before: Robb J Decision: The Court: (1) Declares that the agreement entitled "Terms of Agreement" dated 9 December 2020, and executed by each of the plaintiffs and the defendant (the Agreement), is valid and enforceable between the parties. (2) Orders that subject to the proper performance of the Agreement by the plaintiffs the defendant specifically perform the Agreement. (3) Orders that the plaintiffs perform their obligations in clause 6 of the Agreement and further that the plaintiffs take all steps that are reasonably required to cooperate with the defendant in causing the transfer to the defendant of the Water Access Licences referred to in that clause in a timely manner. (4) Orders that the cross claim be dismissed. (5) Orders that the defendant pay to the plaintiffs their costs of these proceedings. (6) Grants leave to the parties to apply to the Associate to Robb J or to the Associate to the Equity Duty Judge in case of the unavailability of Robb J on three days' notice for the making of any further orders that are necessary or desirable to give effect to these orders. Catchwords: CONTRACTS — formation — agreement — intention to make concluded bargain — whether agreement signed at conclusion of mediation was immediately binding — where term of agreement required parties to enter into subsequent deed — application of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 — where agreement sufficiently certain to be enforceable and intended to be immediately binding on parties — where specific performance ordered LAND LAW — conveyancing — requirements of writing — agreement to create or dispose of interest in land — where term of agreement required parties to apportion payment for real property after obtaining independent accounting and taxation advice — Duties Act 1997 (NSW), s 274 — where identification of real property sufficiently certain that composite price for interest in real property, trust and partnership property met requirements of s 54A of Conveyancing Act 1919 PARTNERSHIPS AND JOINT VENTURES — partnership property — identification — property purchased with partnership money Legislation Cited: Conveyancing Act 1919 (NSW), s 54A Duties Act 1997 (NSW), s 274 Partnership Act 1892 (NSW) ss 1(1), 33 Cases Cited: Baulkham Hills Private Hospital v GR Securities Pty Ltd (1986) 40 NSWLR 622 Feldman v GNM Australia Ltd [2017] NSWCA 107 Fisher v Degnan [2022] NSWCA 202 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 Tweddell v Henderson [1975] 1 WLR 1496 Woodhouse v Woodhouse [2022] NSWSC 204 Category: Principal judgment Parties: Robert Edward Smart (first plaintiff) Michael Edward Smart (second plaintiff) Joyce Josie Smart by her tutor Robert Edward Smart (third plaintiff) David Lawrence Smart (defendant) Representation: Counsel: J Needham SC and L Beange (plaintiffs) M Cashion SC and M Karam (defendant)