NSW Caselaw
New South Wales Supreme Court
CITATION : Souter v Shyamba Pty Ltd [2002] NSWSC 929 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3080/02 HEARING DATE(S) : 3 October, 2002 JUDGMENT DATE : 3 October 2002
PARTIES : Dennis Souter - Plaintiff Shyamba Pty Ltd - Defendant JUDGMENT OF : Palmer J
COUNSEL : T.J. Hancock, G.L. Raffell - Plaintiff D.P.F. Officer QC, J.M. Hennessy - Defendant SOLICITORS : Dibbs Barker Gosling - Plaintiff Lee & Lyons - Defendant CATCHWORDS : CONTRACT FOR SALE OF LAND - INFORMAL CONTRACT - Agreement for purchase of land and hotel business - protracted negotiations - both parties desire finality - informal document setting out the particulars of the parties, the property, the price and the settlement date executed by both parties - document provides that balance of deposit will be paid to vendor's solicitor on exchange of contracts - whether document and surrounding circumstances evidence an intention of the parties to be immediately bound - whether terms of document capable of having contractual effect. HELD: Informal document was an immediately binding and enforceable contract. - Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 - Allen v Carbone (1975) 132 CLR 528 CASES CITED : - Godecke v Kirwan (1973) 129 CLR 629 - G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 - Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310 Smith v Lush (1952) 52 SR (NSW) 207 DECISION : Declaration and order for specific performance.
Introduction
1 The Plaintiff ("Mr Souter") seeks specific performance of what he says is an informal but binding contract with the Defendant ("Shyamba") made on 1 May 2002 for the sale of land at 1 Market Street, Merimbula, and the hotel and motel business conducted thereon by Shyamba under the name "Lakeview Hotel Motel". I will refer to the land and the business compendiously as "the Hotel". Shyamba says that there is no legally binding contract for sale in existence. 2 The issues may be summarised thus:
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