Hanson v Perks [2005] NSWSC 78

New South Wales Supreme Court

CITATION : Hanson v Perks [2005] NSWSC 78

HEARING DATE(S) : 14 and 15 February, 2005

JUDGMENT DATE : 15 February 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Judgment for the Defendant

CATCHWORDS : CONTRACT - SALE OF LAND - Whether parties had concluded an oral agreement whereby plaintiff would be entitled to acquire an interest in land to be purchased by defendant - whether part performance by plaintiff - question of fact.

Vicki Evelyn Hanson - Plaintiff PARTIES : John Arthur Perks - Defendant

FILE NUMBER(S) : SC 5719/03

R.D. Wilson - Plaintiff COUNSEL : A.M. Colefax SC - Defendant

Peninsula Law - Plaintiff SOLICITORS : Tonkins Drysdale Partners - Defendant

LOWER COURT JURISDICTION :

Ex tempore

Introduction

1 On 23 August 2001, the Defendant entered into a contract for the purchase of a house in Webb Road, Booker Bay, for a price of $370,000. The contract was completed in October 2001. The Defendant provided $150,000 of the purchase price, the balance coming from a borrowing by the Defendant from St George Bank secured by a mortgage over the property. The property was and remains registered in the Defendant's name as a sole proprietor. 2 The Plaintiff claims a declaration that in June 2001 she entered into an oral agreement with the Defendant whereby each of them would contribute $150,000 towards the purchase of the Webb Road property and each would have a half interest in it. The Plaintiff says that she has partly performed that agreement so that it is enforceable in law notwithstanding the absence of writing. 3 In her Statement of Claim, the Plaintiff sought an order for specific performance of the alleged oral contract to the intent that, upon payment to the Defendant of $150,000, the Defendant be ordered to transfer to her a half-interest in the property. That remedy was abandoned in the Plaintiff's final submissions. The Plaintiff now seeks damages for the Defendant's breach of the alleged contract by failing to transfer a half-interest in the property to her. 4 In the alternative, the Plaintiff had sought in her Statement of Claim a declaration that the Defendant holds the whole of the property upon a constructive trust for her as to an one half interest. The Plaintiff sought a consequential order compelling the Defendant to transfer to her a half-interest on payment of $150,000. Again, that claim for relief has been abandoned and the Plaintiff seeks equitable compensation for the Defendant's alleged breach of trust. 5 The Defendant denies that the alleged oral agreement was made with the Plaintiff at all. Further, he says that if any such agreement was made, it is not enforceable in law since it has not been partly performed by the Plaintiff. Finally, the Defendant says that if there is any enforceable agreement between the parties, the Plaintiff, as a matter of discretion, should not be granted any relief because she has contributed nothing to the value of the property and, in fact, is presently unable to do so. 6 Resolution of this case depends primarily upon the credit of the Plaintiff and of the Defendant but there are some contemporaneous documents which are of assistance. The Plaintiff's version of the facts