Khoury & v Khouri

(2006) 66 NSWLR 241; [2006] NSWCA 184

NSW Court of Appeal

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Interrogate

Catchwords

1. Vendor and Purchaser
2. › Agreement for sale of interest in land
3. › Oral agreement
4. › Statute of Frauds
5. › Whether contract to declare trust over land is a 'contract for the sale or other disposition of land or any interest in land'
6. › Whether creation of equitable interest constitutes 'disposition'
7. › Conveyancing Act 1919 (NSW), ss 54A, 23C, 7(1)
1. Vendor and Purchaser
2. › Agreement for sale of interest in land
3. › Part performance
4. › Whether payment of money constitutes act of part performance
5. › Whether payments to third party referable to contract alleged
6. › Conveyancing Act 1919 (NSW), s 54A(2)
1. Equity
2. › Trusts
3. › Declaration of trust
4. › Oral declaration of trust respecting land
5. › Whether oral promise to hold land on trust for consideration operates as present declaration of trust
6. › Whether writing required
7. › Conveyancing Act 1919 (NSW), ss 23C(1)(a), 23C(1)(b)
1. Equity
2. › Trusts
3. › Declaration of trust
4. › Relationship between ss 23C and 54A of Conveyancing Act 1919 (NSW)
5. › Whether s 23C(1)(a) applies to creation of trust interest in land
6. › Whether s 23C(1)(b) operates independently of s 23C(1)(a)

Quick Take

A contract to declare a trust over land is a 'contract for the sale or other disposition of land or any interest in land' within s 54A of the Conveyancing Act 1919 (NSW) and requires a written memorandum for enforcement. Barrett J's contrary view in ISPT Nominees is disapproved. Payments of money, including payments to the vendor and payments to a third party who applies them to discharge the vendor's mortgage, do not constitute acts of part performance under Australian law as received from Maddison v Alderson. The question whether Steadman v Steadman should be adopted in Australia remains open for the High Court.