Bryant v Bryant [2010] NSWSC 658

New South Wales Supreme Court

CITATION : Bryant v Bryant [2010] NSWSC 658

HEARING DATE(S) : 17 June 2010 JURISDICTION : Equity

JUDGMENT OF : Pembroke J

EX TEMPORE JUDGMENT DATE : 17 June 2010

DECISION : See Judgment 27 et seq

CATCHWORDS : CONTRACTS - general contractual principles - subjective intentions of parties - whether defendant without defence - parties bound by the agreement made - REMEDIES - specific performance

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

CATEGORY : Principal judgment

CASES CITED : Casper v Casper [2009] Fam CA 989 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

PARTIES : LEAH ANNE BRYANT TIMOTHY REX BRYANT

FILE NUMBER(S) : SC 2008/280519

COUNSEL : Martin Watts - Plaintiff Timothy Bryant in person - Defendant

SOLICITORS : Mark Ireland Lawyers - Plaintiff

1 HIS HONOUR: This is an action in contract between the plaintiff and the first defendant who were once married. The second defendant is a company owned and controlled by the first defendant. The evidence was, which I accept, that the second defendant has no real assets and is only a necessary party because it has become the registered proprietor as to 70% of certain land in Queensland. 2 Despite the wide ranging claims of the defendants, the case is one which, in my view, involves the principles of contract law and only the principles of contract law. The plaintiff's case was documentary. I will explain those documents shortly. 3 The first defendant gave evidence and tendered certain documents. He did so succinctly, and capably, having regard to the fact he is self-represented and has had to master some of the intricacies of the law. The presentation of his case was heart-felt, but misguided. I am not able to accept that he has demonstrated any legal defence to the plaintiff's claim. Nonetheless he should be complimented on the dignity and restraint that he showed in giving his evidence. His answers to questions were direct. I think they were also honest. The Facts 4 The facts are as follows. The plaintiff and the first defendant married in 1980 and separated in 1996. On 11 March 1996 in the Local Court at Bathurst orders were made providing that the plaintiff should convey to the first defendant land known as Ecclesbourne in McKanes Falls Road, South Bowenfels and the first defendant should convey to the plaintiff adjoining land known as Lot 3. That was done. Those properties represented separate parcels of what was once a larger aggregated farming property originally owned by the parents of the first defendant. 5 In addition to the orders made by the Local Court at Bathurst, the plaintiff and the first defendant entered into an agreement embodied in a mortgage date 4 September 1996. The mortgagor was the first defendant and the mortgagee was the plaintiff. The first defendant was legally represented by Mr Ronald Freisen, a solicitor from Bathurst. The terms of the mortgage included a provision that the principal sum due under the mortgage shall be paid in circumstances that included, among others, the sale of the property by the mortgagor. The mortgage went on to provide that the principal sum due under the mortgage shall be determined relevantly as follows: In the event of the sale of the mortgage property by the mortgagor by means of an arms-length sale the principal sum shall be an amount equivalent to 39% of the net sale proceeds received after deduction of all reasonable legal costs, disbursements and agent's commission, if any, incurred by the mortgagor in respect of such sale.