Brannigan v Smith [2017] NSWSC 1201

Brannigan v Smith [2017] NSWSC 1201

The Court held that exchange of the option agreement for the relevant property occurred on 7 June 2013, not 28 May 2013, as there was no agreement to effect exchange using an emailed signature page. The plaintiff validly exercised the option within the period by serving notice on the defendants' agent by facsimile, which was sufficient service under general law and not confined by s 170 of the Conveyancing Act. Accordingly, the plaintiff was entitled to specific performance.

Jurisdiction
Australia
Judgment Date
08 September 2017
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Plaintiff validly exercised option to purchase; declarations and orders for specific performance.
Legal Topics
['conveyancing' 'options to Purchase' 'exercise of Option' 'exchange of Counterparts' 'service of Notices' 'specific Performance']
['land Law' 'equity'] ['conveyancing' 'options to Purchase' 'exercise of Option' 'exchange of Counterparts' 'service of Notices' 'specific Performance']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether the exchange of option agreements occurred on 28 May 2013 or 7 June 2013' 'Whether it was agreed that exchange could occur using an emailed copy of the signature page' 'Whether the plaintiff validly exercised the option to purchase within the option period' 'Whether service of the notice of exercise on an agent and/or by facsimile was effective as service on the grantor' 'Whether service was required to be per s 170 of the Conveyancing Act 1919 (NSW)']

Ratio Decidendi

The Court held that exchange of the option agreement for the relevant property occurred on 7 June 2013, not 28 May 2013, as there was no agreement to effect exchange using an emailed signature page. The plaintiff validly exercised the option within the period by serving notice on the defendants' agent by facsimile, which was sufficient service under general law and not confined by s 170 of the Conveyancing Act. Accordingly, the plaintiff was entitled to specific performance.

Court Disposition

Plaintiff validly exercised option to purchase; declarations and orders for specific performance.

Orders

  • ['Declarations to the effect that the parties entered into the option agreement on 7 June 2013 and that the plaintiff validly exercised the option on 2 June 2016.' 'Orders requiring the defendants to enter into a contract for sale of the property in accordance with the option agreement and for specific performance.'...