Gerardis v Gerges [2008] NSWSC 134

New South Wales Supreme Court

CITATION : Gerardis v Gerges [2008] NSWSC 134

HEARING DATE(S) : 25/02/08

JUDGMENT DATE : 25 February 2008

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

EX TEMPORE JUDGMENT DATE : 25 February 2008

DECISION : Order for specific performance

CATCHWORDS : CONTRACTS - specific performance - contract to grant mortgage of land - not evidenced by writing - but promisee shows acts of part performance in reliance on the promise - specific performance granted

LEGISLATION CITED : Conveyancing Act 1919, ss 23C(1)(a), 23E, 54A

CATEGORY : Principal judgment

CASES CITED : Khoury v Khouri (2006) 66 NSWLR 241

Giuseppe Antonia Gerardis - First Plaintiff PARTIES : Rita Maria Columbus Gerardis - Second Plaintiff Fahed Youssef Gerges - First Defendant Noble Potts Point Pty Limited - Second Defendant

FILE NUMBER(S) : SC 4777/07

COUNSEL : Mr R W Tregenza - Plaintiffs

SOLICITORS : Carbone Lawyers - Plaintiffs

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

MONDAY 25 FEBRUARY 2008

4777/07 GIUSEPPE ANTONIA GERARDIS & ANOR v FAHED YOUSSEF GERGES & ANOR JUDGMENT 1 The plaintiffs seek relief against the first defendant, Mr Gerges, by way of specific performance of an alleged oral agreement made on an unspecified date shortly before 24 November 2006. 2 The alleged oral agreement is said to have arisen from conversations between Mr Gerges and the plaintiffs' solicitor, Mr Carbone. The conversations took place in the context of certain conveyancing transactions then in progress and about to be settled. I am satisfied that Mr Carbone, as their solicitor, spoke with the authority of the plaintiffs when he had the conversations with Mr Gerges. 3 The conversations are said to have given rise to an oral agreement in the terms pleaded at para 10 of the statement of claim. Mr Carbone's evidence at paras 8 to 11 of his affidavit of 20 February 2008 enables the court to conclude that the oral agreement as pleaded was made. I find accordingly. 4 It is pertinent to note that the part of the dialogue recorded at para 10 of the affidavit refers explicitly to Mr Gerges' undertaking to sign documentation Mr Carbone had prepared which, on the evidence, is a form of the deed which is the exhibit DMC 7 to Mr Carbone's affidavit of 25 February 2008, which form of deed had annexed to it a form of mortgage under the Real Property Act 1900. 5 In substance, the oral agreement was one under which Mr Gerges agreed to grant to the plaintiffs a mortgage of his property at Kemp's Creek to secure a promise made by him to pay money to the plaintiffs in consideration of the plaintiffs not insisting upon full payment of the balance of purchase moneys upon completion of a sale by the plaintiffs of a property at Kings Cross to a company associated with Mr Gerges. The plaintiffs, for their part, agreed to settle the sale of the King's Cross property upon payment of part only of the balance of purchase moneys. They did this in return for Mr Gerges' promise to grant them the mortgage. 6 Having regard to the evidence of Mr Carbone, I am satisfied that the terms of the oral agreement are those reflected in the draft deed and mortgage, with one point of difference or clarification. The draft deed makes it clear, as does the evidence about the conversations, that the sum concerned was $530,000, whereas the form of mortgage annexed to the deed refers to a sum secured of $485,000. On the whole of the evidence, it must be accepted that the mortgage was intended to refer to and to secure a sum of $530,000 and that the agreement to grant a mortgage concerned a mortgage to secure $530,000 rather than $485,000. 7 The oral agreement relied on by the plaintiffs is an agreement by Mr Gerges to grant a mortgage of his property at Kemp's Creek. It is therefore an agreement for the sale or disposition of land or an interest in land to which s 54A of the Conveyancing Act 1919 applies: "(1) No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged.