SOMMERS v PEARSE [1993] NSWCA 249

SOMMERS v PEARSE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP SHELLER and POWELL JJA 21 October 1993, 16 December 1993 [1993] NSWCA 249

Practice and Procedure — Specific Performance — Stamp Duty — Vendor and Purchaser — Pleading — Readiness and willingness to perform

Practice and Procedure — Specific Performance — Pleading — Oral term omitted from memorandum — Undertaking or submission to order to perform

Stamp Duty — Agreement for sale of land — Allegation that agreement structured so as to avoid stamp duty — Effect if allegation proved

Mehmet v Benson (1964-1965) 113 CLR 295 London and Birmingham Railway Company v Winter (1840) Cr and Ph 57 Alexander v Rayson [1936] 1 KB 169

Effie Holdings Properties Pty Ltd v 3A International Pty Ltd (1984) NSW Conv R55-174 Vendor and Purchaser - Agreement for sale of land - Collateral agreement to pay vendor's "expenses" - Specific performance - Whether conditional upon performance of collateral agreement.

ORDER that the Appeal be dismissed. ORDER that the Appellant pay the Respondent's costs of the Appeal.

Mahoney AP The facts are detailed in the judgment of Powell JA which I have had the advantage of reading. I agree that the appellant fails in this appeal. In deference to the careful and detailed arguments of Mr McDougall QC for the appellant, I shall add to what has been said by Sheller JA and Powell JA some observations of my own.

1. THE CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES:

It is proper to approach this matter upon the basis of the findings of fact made by the learned trial judge. In my opinion no effective attack has been made upon them.

Relevantly, the parties did two things: they entered into a written contract of sale which bears the date 16 April 1988 ("the contract of sale"); and they made an agreement which involved the payment of an additional $50,000 ('the agreement"). In my opinion, the agreement was not part of the contract of sale: it was related and collateral to it but it was not part of it. The defendant Mrs Sommers was prepared to enter into the contract of sale only if the plaintiff Mr Pearse entered into the agreement with her. Upon his doing so, she entered into the contract of sale.