KHOURY & ANOR v KHOURI [2006] NSWCA 184

KHOURY & ANOR v KHOURI [2006] NSWCA 184

The oral agreement between Peter Khoury and Bechara Khouri was a contract for the sale or other disposition of an interest in land within s.54A of the Conveyancing Act 1919 (NSW) and required compliance with the statutory requirement for writing. The acts relied upon as part performance (payments of money and arrangements regarding mortgage repayments) were not unequivocally referable to such a contract and thus insufficient to overcome the lack of writing. Therefore, the proceedings must be dismissed.

Parties
1st Appellant: Marina Khoury; 2nd Appellant: Peter Basil Khoury; Respondent: Bechara Khouri
Jurisdiction
Australia
Judgment Date
14 July 2006
Procedural Posture
Civil Appeal / Determination of Appeal in Court of Appeal
Outcome
Appeal allowed
Legal Topics
Vendor and Purchaser, Trusts, Statute of Frauds, Part Performance, Contracts Relating to Land
Property Law Equity Vendor and Purchaser Trusts Statute of Frauds Part Performance Contracts Relating to Land

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Parties

Marina Khoury

1st Appellant

Peter Basil Khoury

2nd Appellant

Bechara Khouri

Respondent

Procedural Posture

Civil Appeal / Determination of Appeal in Court of Appeal

Legal Issues

  1. 1 Whether an oral agreement for the sale or declaration of trust of an interest in land is enforceable without written memorandum under ss.54A or 23C of the Conveyancing Act 1919 (NSW)
  2. 2 Whether the acts relied on constituted sufficient part performance to take the agreement outside the statutory requirements for writing

Ratio Decidendi

The oral agreement between Peter Khoury and Bechara Khouri was a contract for the sale or other disposition of an interest in land within s.54A of the Conveyancing Act 1919 (NSW) and required compliance with the statutory requirement for writing. The acts relied upon as part performance (payments of money and arrangements regarding mortgage repayments) were not unequivocally referable to such a contract and thus insufficient to overcome the lack of writing. Therefore, the proceedings must be dismissed.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed with costs.
  • The orders and declaration of Barrett J of 20 November 2004 are set aside.