McNAMARA v FREEMAN [1989] NSWCA 143

McNAMARA v FREEMAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, CLARKE and MEAGHER JJA 19 July 1989, 19 July 1989

[1989] NSWCA 143

COMMON LAW — OPTION TO PURCHASE — TERMS OF SETTLEMENT — AGENT'S AUTHORITY — BIAS.

Meagher JA In this matter Mrs McNamara, the appellant/defendant signed a document which, on the fact of it, seems to be an option for the purchase of some land owned by her at 1 Rose Terrace, Paddington. The plaintiffs, a Mr Freeman and Mrs Pamela Freeman, sought specific performance of that option.

Those proceedings were heard by Young J for a period of one day in the course of which his Honour had the affidavits read and heard a certain amount of oral evidence. At the conclusion of the day there was discussion about settlement of the matter between the parties.

Those settlement discussions were protracted. They lasted from 4 o'clock to about 5.30. During the course of those settlement negotiations various offers were made by the plaintiffs to the defendants. The evidence which was accepted by his Honour is that eventually, at Mrs McNamara's suggestion, the figure of $115,000 should be put to the plaintiffs. It was put and it was accepted. The original contract price was formerly $95,000.

After the parties had agreed as to the price the legal representatives went to a room, in which Mrs McNamara was not present, and drew up terms of settlement which are as follows:

1. Declaration and orders in terms of paragraphs 1, 2 and 3 of the plaintiffs summons filed 19th October, 1988.

2. Order that within 3 days of the defendants solicitors submitting to the plaintiffs solicitors a contract in the form of the 1988 edition of the Law Society and Real Estate Institute, the parties to execute and enter into the said contract.

3. Note the undertaking to the Court of the plaintiff and the defendant that they will do all such things and execute all such documents as may be necessary to give effects to the order made in paragraph 2 above.