MITAKOS v KLIDES [1997] NSWCA 208

MITAKOS v KLIDES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, HANDLEY and STEIN JJA

6 August 1997 Lease — Oral Agreement — Conveyancing Act 1919, S 54a — Specific Performance

The appellant and the respondent entered into an oral agreement for the lease of a shop. A memorandum containing some of the terms was signed by the appellant. Later a dispute arose about the terms of the formal lease. The respondent rescinded and sued for damages. The appellant cross-claimed for damages for the wrongful repudiation of the agreement. The trial judge found for the respondent.

HELD: dismissing the appeal: (1) The judge's findings as to the terms of the oral agreement for lease could not be disturbed; (2) Neither party had pleaded that the oral agreement was unenforceable because there was no sufficient memorandum of the contract to satisfy s 54 A of the Conveyancing Act, and the appellant had not contended at the trial that the oral agreement was subject to contract. Had either point been raised at the trial the proceedings might have been conducted differently. It was too late for the appellant to raise either point for the first time on appeal.

Conveyancing Act 1919, s 54A considered

FAI Insurance Co Ltd v Concord Personnel Management Services Pty Ltd (1987) 87 NSW Conv R 55, considered.

Mason P. I will ask Justice Handley to give the first judgment.

Handley JA. This appeal arises out of an oral agreement for a lease entered into between the appellant as landlord and the respondents as intending tenants on or about 31 August 1988. A memorandum of the terms of that agreement was brought into existence on 31 August and signed by the appellant but not by the respondents.

In November 1989 disputes arose prior to the execution of a formal lease and the intending tenants regarded themselves as entitled to rescind. They sued for damages for breach of the oral agreement.