McKenry v White [2003] NSWSC 131

New South Wales Supreme Court

CITATION : McKenry v White [2003] NSWSC 131 HEARING DATE(S) : 6 March 2003 JUDGMENT DATE : 7 March 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : No concluded contract.

CATCHWORDS : CONTRACTS [37] - General contractual principles - Offer and acceptance - Agreements contemplating execution of formal document - Whether concluded contract - Handwritten agreement executed in counterparts. Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 CASES CITED : G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Masters v Cameron (1954) 91 CLR 353 Meagher, Gummow and Lehane's Equity Doctrine and Remedies (4th ed, 2002) [26-095] Keith McKenry (P1) PARTIES : Jennifer McKenry (P2) Arthur Leslie White (D) FILE NUMBER(S) : SC 5633/02 COUNSEL : P T Newton (Ps) I E Davidson (D) SOLICITORS : Heidtman & Co (Ps) Elrington Boardman Allport (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 7 MARCH 2003

5633/02 KEITH McKENRY & ANOR v ARTHUR LESLIE WHITE JUDGMENT 1 HIS HONOUR: The subject matter of these proceedings is whether there is or is not a binding contract for the sale by the defendant to the plaintiffs of a lot of farmland near Yass. The relevant land is known as lot 173 in a proposed subdivision and is of about 80 hectares (200 acres) ("the property"). 2 The plaintiff, Dr McKenry, is a Doctor of Philosophy and holds or has held office as an Assistant Taxation Commissioner of the Commonwealth. His wife, who is the second plaintiff, also holds high office in the Commonwealth Public Service. The defendant is a farmer of little education. However, I should say that I do not think that any disparity between the educational or other backgrounds of the parties plays any real part in this case. Despite a lack of higher education, the defendant struck me as an ordinary man with a reasonably good grasp of affairs. 3 Oral evidence was given by Dr McKenry and Mr White. No serious damage was done to the credit of either in the short cross examination which occurred and they both appeared to me to be inherently believable witnesses. The only thing that might be said, insofar as it matters, is that the recollection of relevant events and conversations of Dr McKenry and Mrs McKenry appeared somewhat more detailed than that of Mr White. 4 The plaintiffs are both approaching retirement. They have already entered into some activity relating to the raising of alpacas and their desire to acquire the property was for the purpose of expanding that activity in their retirement. Mr White had for some time been trying to sell the property and had had two earlier prospective sales fall over. The latter of them was a contract, the rescission of which was confirmed at about the time of his negotiations with the McKenrys. 5 The property was first viewed by Dr McKenry on 10 July 2002 and he returned with his wife on 15 July 2002. The evidence shows there was some negotiation between the parties out on the property as to price and other terms. This culminated, said Dr McKenry, in the following exchange: "I said: 'Bearing all this in mind, will you accept a purchase price of $160,000'. He said, 'Yes'. We then shook hands on the deal."