Bruce Percy Hocking v Sophia Lambiris aka Wilkie [2009] NSWSC 382

Bruce Percy Hocking v Sophia Lambiris aka Wilkie [2009] NSWSC 382

The plaintiff failed to establish the terms of the alleged Partnership Agreement with sufficient certainty, including the parties to it, what advances were to be repaid before profits were shared, whether the defendant's deposit was to be repaid, and whether the Land was to be resold immediately. Because no sufficiently certain contract was proved, specific performance could not be ordered and the express trust claim framed by reference to that alleged Partnership Agreement also failed.

Jurisdiction
Australia
Judgment Date
14 May 2009
Procedural Posture
Equity Division Proceeding for Specific Performance, Declaration of Express Trust, and Appointment of Trustee for Sale of Land / Final Hearing and Judgment
Outcome
Plaintiff's claims dismissed.
Legal Topics
['specific Performance' 'uncertainty of Agreement' 'partnership Agreement' 'express Trust Over Land' 'conveyancing Act Writing Requirements']
['equity' 'contract' 'trusts' 'property'] ['specific Performance' 'uncertainty of Agreement' 'partnership Agreement' 'express Trust Over Land' 'conveyancing Act Writing Requirements']

Case Brief

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Procedural Posture

Equity Division Proceeding for Specific Performance, Declaration of Express Trust, and Appointment of Trustee for Sale of Land / Final Hearing and Judgment

Legal Issues

  1. 1 ['Whether the plaintiff established with sufficient certainty the alleged Partnership Agreement concerning the Marsden Park land.' 'Whether specific performance should be ordered.' 'Whether the defendant held the Land upon an express trust for the Partnership.' 'Whether a trustee should be appointed for sale of the Land and division of net proceeds.' 'Whether s 23C of the Conveyancing Act (1919) NSW would prevent the express trust claim for want of writing.']

Ratio Decidendi

The plaintiff failed to establish the terms of the alleged Partnership Agreement with sufficient certainty, including the parties to it, what advances were to be repaid before profits were shared, whether the defendant's deposit was to be repaid, and whether the Land was to be resold immediately. Because no sufficiently certain contract was proved, specific performance could not be ordered and the express trust claim framed by reference to that alleged Partnership Agreement also failed.

Court Disposition

Plaintiff's claims dismissed.

Orders

  • ["The plaintiff's claims are dismissed." 'The Court will hear the parties in respect of costs.']