Chalik v Wales & Ors, Vaysman v Wales & Ors, Brainenberg v Wales & Ors, Damiz Pty Ltd v Woodgate & Ors [2005] NSWSC 877

Chalik v Wales & Ors, Vaysman v Wales & Ors, Brainenberg v Wales & Ors, Damiz Pty Ltd v Woodgate & Ors [2005] NSWSC 877

An oral agreement reached at mediation to compromise proceedings between Damiz and Brainenberg (for payment of $341,250) was binding, as there was no intention that it be contingent on a written document, and its subject did not require writing under s.54A Conveyancing Act 1919 because it did not purport to vary the contract for sale. Brainenberg is not entitled to a purchaser’s lien for costs alone in the circumstances presented.

Parties
Plaintiff: Igor Chalik; Plaintiff: Leonid Vaysman; Plaintiff: Eva Brainenberg; Plaintiff: Damiz Pty Limited; First Defendant: John Andrew Wales; Second Defendant: Downunder Pte Limited; Third Defendant: Dennis Cooney; Fourth Defendant (sometimes First Defendant): Giles Woodgate as trustee of the bankrupt estate of John Andrew Wales; Third Defendant (in 3022/04): Igor Chalik; Fourth Defendant (in 3022/04): Leonid Vaysman; Fifth Defendant (in 3022/04): Eva Brainenberg
Jurisdiction
Australia
Judgment Date
02 September 2005
Procedural Posture
Equity Proceedings (consolidated) / Judgment After Hearing
Outcome
Orders to be made in terms of short minutes, specifically providing for performance of contracts for Lot 9 and Lot 14 on determined terms, distribution of settlement proceeds, and withdrawal of caveats and discharges of mortgages.
Legal Topics
Oral Agreement to Compromise Litigation, Specific Performance, Statutory Requirements as to Writing (statute of Frauds, Conveyancing Act S.54 A), Purchaser’s Lien, Enforceability of Compromise Agreements
Contract Law Equity Property Law Conveyancing Oral Agreement to Compromise Litigation Specific Performance Statutory Requirements as to Writing (statute of Frauds, Conveyancing Act S.54 A) Purchaser’s Lien +1 more

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Parties

Igor Chalik

Plaintiff

Leonid Vaysman

Plaintiff

Eva Brainenberg

Plaintiff

Damiz Pty Limited

Plaintiff

John Andrew Wales

First Defendant

Downunder Pte Limited

Second Defendant

Dennis Cooney

Third Defendant

Giles Woodgate as trustee of the bankrupt estate of John Andrew Wales

Fourth Defendant (sometimes First Defendant)

Igor Chalik

Third Defendant (in 3022/04)

Leonid Vaysman

Fourth Defendant (in 3022/04)

Eva Brainenberg

Fifth Defendant (in 3022/04)

Procedural Posture

Equity Proceedings (consolidated) / Judgment After Hearing

Legal Issues

  1. 1 Whether an oral agreement to compromise litigation regarding the sale of land is binding and enforceable
  2. 2 Whether parties intended only a written agreement to be binding
  3. 3 Whether s.54A of the Conveyancing Act 1919 requires the oral contract to be in writing

Ratio Decidendi

An oral agreement reached at mediation to compromise proceedings between Damiz and Brainenberg (for payment of $341,250) was binding, as there was no intention that it be contingent on a written document, and its subject did not require writing under s.54A Conveyancing Act 1919 because it did not purport to vary the contract for sale. Brainenberg is not entitled to a purchaser’s lien for costs alone in the circumstances presented.

Court Disposition

Orders to be made in terms of short minutes, specifically providing for performance of contracts for Lot 9 and Lot 14 on determined terms, distribution of settlement proceeds, and withdrawal of caveats and discharges of mortgages.

Orders

  • Order for specific performance of sale of Lot 9 (purchase price $341,250 plus adjustments); Vaysman to receive $200,000 from net proceeds, Damiz to receive balance; upon settlement, withdrawals of caveats and discharges of mortgages as specified.
  • Order for specific performance of sale of Lot 14 (purchase price $240,000 plus adjustments); Damiz to receive all settlement moneys; corresponding withdrawals of caveats/discharges of mortgages.