Tam v Mannall [2010] NSWSC 250

New South Wales Supreme Court

CITATION : Tam v Mannall [2010] NSWSC 250

HEARING DATE(S) : 29/03/10

JUDGMENT DATE : 1 April 2010

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

1. Declare that the contract for sale made between the defendants as vendors and the plaintiff as purchaser dated 7 March 2009 relating to the property in Burwood Road Burwood which is the whole of the land in Folio Identifiers 3/10833 and B/27199 is valid and enforceable and ought to be specifically performed. DECISION : 2. Order that the defendants do specifically perform the said contract for sale. 3. Order that the cross-claim filed on 30 June 2009 be dismissed. 4. Order that the defendants/cross-claimants pay the costs of the plaintiff/cross-defendant of the proceedings.

CATCHWORDS : CONVEYANCING - contract for sale of land - contract signed and exchanged upon conclusion of auction - whether written contract supplemented by inconsistent oral contract concerning incidence of GST - purchaser seeks specific performance of written contract - vendors seek specific performance of that contract as allegedly supplemented - CONTRACTS - contract in writing - whether modified by collateral oral contract - parol evidence rule - EQUITY - equitable remedies - rectification - common mistake - alleged common intention inconsistent with terms of written contract - vendors must show convincing proof of common intention - vendors rely on words spoken at auction - not shown that purchaser heard these words or by bidding intended to adopt them

A New Tax System (Goods and Services Tax) Act 1999 (Cth) LEGISLATION CITED : Conveyancing Act 1919, s 54A Property Stock and Business Agents Regulation 2003, cl 18