Kimball v Brien [2007] NSWSC 1448

New South Wales Supreme Court

CITATION : Kimball v Brien [2007] NSWSC 1448

HEARING DATE(S) : 27 November 2007

JUDGMENT DATE : 27 November 2007

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Specific performance ordered.

CATCHWORDS : EQUITY [379] - Equitable remedies - Specific performance - The jurisdiction in general - General principles - Enforcement by purchaser.

LEGISLATION CITED : Conveyancing Act 1919 s 54A Supreme Court Rules 1970 Part 33 r 6

Robert Richardson Kimball (P) Richard Campbell Brien as Trustee for the Estate of Donald Roy Tait (D1) PARTIES : Commonwealth Director of Public Prosecutions (D2) Deputy Commissioner of Taxation (D3) Kevin Victor Crompton and Catherine Mary Crompton (D4)

FILE NUMBER(S) : SC 4127/91

COUNSEL : J F Merewether, Solicitor (P) No appearances (Ds)

Merewether & Co (P) Self represented (D1) SOLICITORS : Director of Public Prosecutions (Cth) (D2) Australian Government Solicitor (D3) Munro Egan Simpson (D4)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 27 NOVEMBER 2007

4127/91 Robert Richardson Kimball v Richard Campbell Brien as Trustee of the ESTATE OF DONALD ROY TAIT & Ors JUDGMENT 1 HIS HONOUR: These are unusual proceedings. They are proceedings for the specific performance of a contract for the sale of land in New South Wales made in a gaol in Thailand in 1986. They may be said to be an illustration of Murphy's law, since almost anything that could have gone wrong with any of the parties to the proceedings has gone wrong. 2 The plaintiff is Robert Richardson Kimball. The agreement was that Donald Roy Tait would sell to Mr Kimball two pieces of land in New South Wales (together called "the property") for the sum of $140,000, to be paid in instalments. 3 The contract itself is a very curious document, since all the paragraphs in it, whether recitals or truly substantive provisions, are preceded by the word "whereas". It is quite difficult on the face of the document to determine which of its provisions are to be construed as executory provisions of a contract imposing obligations on the parties. 4 However, it does not much matter, since to any extent that the written agreement does not record the obligations which the parties undertook, it makes it plain that they did undertake such obligations to each other orally before the document was entered into. Thus, insofar as it does not itself operate as a contractual document, it will operate as a note or memorandum of the contract for the purposes of s 54A of the Conveyancing Act 1919, so as to render the contract enforceable. 5 One thing about which there is no doubt in the circumstances of this case is that the contract was made between these two men in the terms claimed by the plaintiff. The evidence of both the vendor, Mr Tait, and the purchaser, Mr Kimball, is available and both give evidence to the same effect. Furthermore, the evidence of both is to the effect that the contract was carried out by the payment of all the promised instalments. The only way in which it remains to be carried out is by the transfer of the property to the plaintiff. The defendant is still alive and is somewhere in Thailand. He agrees to an order for the transfer of the property. 6 The proceedings were commenced by summons on 12 August 1991. They name, as the first defendant, Richard Campbell Brien as trustee for the estate of Donald Roy Tait. Mr Tait was bankrupt at the time that the summons was taken out. Yet another of the things that has gone wrong so far as persons involved in these proceedings are concerned is that Richard Campbell Brien, although a trustee in bankruptcy, himself went bankrupt on 14 February 2000. The Official Trustee in Bankruptcy thereupon became the trustee of Mr Tait's bankrupt estate. However, in fact there was by that time no extant bankruptcy of Mr Tait, since a bankruptcy search which is in evidence reveals that he was discharged from bankruptcy by effluxion of time on 27 October 1993. 7 No investigation need be made as to whether Mr Tait or his bankrupt estate is entitled to the property, since both Mr Tait, in whose name the titles are registered, and the Official Trustee in Bankruptcy, who represents that estate, consent to the making of the orders now sought. 8 Whilst Richard Campbell Brien is not the correct first defendant in the proceedings, I do not propose that money should be wasted amending the proceedings in this regard in light of the consents which I have just noted. 9 The second defendant named was the Commonwealth Director of Public Prosecutions, who at some stage made some claim upon the property. However, he should be taken to have been removed from the proceedings by an order that is of record in the Court. As with so many things in these proceedings, the order was irregular. It ordered that: "These proceedings be discontinued as against the second defendant."