Smart v Smart [2023] NSWSC 307

Smart v Smart [2023] NSWSC 307

The Terms of Agreement was intended to be immediately binding and was sufficiently certain to be enforced. In context, it was executed at the conclusion of a mediation intended to achieve final settlement, was headed "Terms of Agreement", fixed a total payment of $2,500,000 for David's interests, sufficiently identified the relevant property including the 1,640 acre Nangus Homestead and the Gundagai property, and included obligations to do all things reasonably required to give effect to it. Clauses requiring later apportionment and a Deed of Settlement and Release did not make the agreement merely an agreement to agree or defer enforceability. Section 54A of the Conveyancing Act 1919...

Jurisdiction
Australia
Judgment Date
31 March 2023
Procedural Posture
Equity Proceedings Seeking Specific Performance of a Settlement Agreement, With a Cross Claim Concerning Separation of Property and Partnership Interests / Principal Judgment After Hearing
Outcome
The plaintiffs succeeded; the Terms of Agreement was declared valid and enforceable, specific performance was ordered, the cross-claim was dismissed, and the defendant was ordered to pay the plaintiffs' costs.
Legal Topics
['contract Formation' 'intention to Create Binding Agreement' 'masters V Cameron Categories' 'specific Performance' 'requirements of Writing for Disposition of Land' 'partnership Property' 'water Access Licences']
['contracts' 'land Law' 'partnerships and Joint Ventures' 'equity'] ['contract Formation' 'intention to Create Binding Agreement' 'masters V Cameron Categories' 'specific Performance' 'requirements of Writing for Disposition of Land' 'partnership Property' 'water Access Licences']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Specific Performance of a Settlement Agreement, With a Cross Claim Concerning Separation of Property and Partnership Interests / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Terms of Agreement signed on 9 December 2020 was immediately binding, conditional, or not binding unless and until recorded in a signed deed.' 'Whether the Terms of Agreement was insufficiently certain or complete in respect of the property, real property terms, partnership assets, Water Access Licences, or the Trust.' 'Whether the agreement was void in whole or part for uncertainty or incompleteness.' 'Whether the agreement, insofar as it related to land, was unenforceable for non-compliance with s 54A of the Conveyancing Act 1919 (NSW).' 'Whether the Court should order specific performance of the agreement.' 'If the agreement was not binding and enforceable, whether relief should be granted on the cross-claim concerning the Partnership, Trust, properties and Water Access Licences.']

Ratio Decidendi

The Terms of Agreement was intended to be immediately binding and was sufficiently certain to be enforced. In context, it was executed at the conclusion of a mediation intended to achieve final settlement, was headed "Terms of Agreement", fixed a total payment of $2,500,000 for David's interests, sufficiently identified the relevant property including the 1,640 acre Nangus Homestead and the Gundagai property, and included obligations to do all things reasonably required to give effect to it. Clauses requiring later apportionment and a Deed of Settlement and Release did not make the agreement merely an agreement to agree or defer enforceability. Section 54A of the Conveyancing Act 1919...

Court Disposition

The plaintiffs succeeded; the Terms of Agreement was declared valid and enforceable, specific performance was ordered, the cross-claim was dismissed, and the defendant was ordered to pay the plaintiffs' costs.

Orders

  • ['Declares that the agreement entitled "Terms of Agreement" dated 9 December 2020, and executed by each of the plaintiffs and the defendant (the Agreement), is valid and enforceable between the parties.' 'Orders that subject to the proper performance of the Agreement by the plaintiffs the defendant specifically...