Covacich & Covacich v Maguire [1992] QCA 165

IN THE COURT OF APPEAL [1992] QCA 165 SUPREME COURT OF QUEENSLAND Appeal No.99 of 1991 BETWEEN: DAVID FRANCIS COVACICH and SHIRLEY ANNE COVACICH (Plaintiffs) Respondents - and - VERONICA FAY MAGUIRE (Defendant) Appellant JUDGMENT OF THE COURT Delivered the 25th day of June, 1992 This is an appeal from a judgment in the District Court on 7 November 1991 whereby specific performance was granted of an oral agreement for a transfer of land by the appellant to the respondents. The broad effect of the party's bargain was that: (i) the appellant would acquire a house situated on two allotments adjoining the respondents' property; (ii) the respondents would carry out repairs to the appellant's house; (iii) the appellant would transfer to the respondents a portion of the allotment nearest their property consistently with local authority requirements; and (iv) there would be a cash adjustment of the difference between the value of the land transferred by the appellant to the respondents as determined by the mortgagee and the expenses incurred by the respondents in carrying out the repairs. The "central issues" for this Court's determination as stated by the appellant were: "(a) was an agreement entered into and, if so, what were the terms of the agreement; -- 1 of 6 -- 2 (b) were the terms of the agreement sufficiently certain to be enforceable; (c) were there sufficient acts of part performance." There might well have been difficulty in enforcing the original arrangement made between the parties, but at the point at which they fell into dispute the transaction had largely been completed. The repairs had been carried out and, although there was a dispute as to the inclusion of some items, the expenses had been ascertained, the land had been identified and the local authority's approval had been obtained. Whatever uncertainties may have attended the party's original agreement had been resolved by their further agreement as the transaction had been implemented: cf. Oxford v. Provand (1868) LR 2PC 135. Any imprecision in the pleadings, the evidence or the findings was rendered immaterial by the events which had consensually occurred. The same considerations effectively eliminate any basis for argument that there were insufficient acts of part performance to take the oral agreement outside section 59 of the Property Law Act 1974. The point was only faintly argued in this Court, no doubt because, in addition to other matters, the respondents had caused a survey to be made of the relevant land with the approval of the appellant who actually signed the associated documentation. The only outstanding matter relates to the valuation of the land to be transferred. There is no suggestion that the mortgagee will not co-operate, but it was argued for the appellants that the agreement was uncertain on this aspect. However, it is plain that, although different methods of valuation giving different results are theoretically possible, what the parties contemplated was a value acceptable to the mortgagee for the purposes of its security. What is to be determined is the mortgagee's value of the land to be transferred by the appellant to the respondents as at the date of release of the mortgage upon that part of the appellants' land in order to enable the transfer to be effected. While the appeal should therefore be dismissed, there are -- 2 of 6 -- 3 some variations in the orders made below which are called for. The parties have agreed upon the appropriate orders to be made in the event that the appeal is dismissed; namely: 1. That the defendant do all such acts and execute all such documents as may be reasonable and proper to enable Cedar Co-Operative Housing Society (No.25) Limited to enter upon the defendant's land and value that portion identified in exhibit 3 as the one half of Lot 348 adjoining Lot 347 on registered plan 30542, as at 30th June 1990 including, within seven days from the date hereof, signing an authority enabling Cedar Co-Operative Housing Society (No.25) Limited to enter upon the defendant's land to conduct the valuation. 2. That if the valuation so obtained is less than or equal to the amount of $7,073.24 there be no further payments as between the parties. 3. That if the valuation exceeds the amount of $7,073.24 the plaintiffs pay to the defendant the amount of such excess within seven days of the receipt of such valuation. 4. That within seven days of receipt of the valuation the defendant do all such acts and execute all such documents as may be reasonable and proper to enable a transfer to the plaintiffs of the said portion. 5. That each party pay one half of the cost of valuation. 6. That the plaintiffs pay the costs of and incidental to the registration of the transfer of the said portion. The Court orders that the appeal be dismissed with costs, including reserved costs, if any, to be taxed and makes further orders in accordance with paragraphs 1 to 6 as agreed between the parties. -- 3 of 6 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No.99 of 1991 Before the Court of Appeal The President Pincus JA Derrington J BETWEEN: DAVID FRANCIS COVACICH and SHIRLEY ANNE COVACICH (Plaintiffs) Respondents - and - VERONICA FAY MAGUIRE (Defendant) Appellant JUDGMENT OF THE COURT Delivered the 25th day of June, 1992 MINUTE OF ORDER: Appeal dismissed with costs, including reserve costs, if any, to be taxed. Orders below varied in the following respects: 1. The defendant is to do all such acts and execute all such documents as may be reasonable and proper to enable Cedar Co-Operative Housing Society (No.25) Limited to enter upon the defendant's land and value that portion identified in exhibit 3 as the one half of Lot 348 adjoining Lot 347 on registered plan 30542, as at 30th June 1990 including, within seven days from the date hereof, signing an authority enabling Cedar Co-Operative Housing Society (No.25) Limited to enter upon the defendant's land to conduct the valuation. 2. If the valuation so obtained is less than or equal to the amount of $7,073.24 there is to be no further payments as between the parties. 3. If the valuation exceeds the amount of $7,073.24 the plaintiffs are to pay to the defendant the amount of -- 4 of 6 -- 5 such excess within seven days of the receipt of such valuation. 4. Within seven days of receipt of the valuation the defendant are to do all such acts and execute all such documents as may be reasonable and proper to enable a transfer to the plaintiffs of the said portion. 5. Each party is to pay one half of the cost of valuation. 6. The plaintiffs is to pay the costs of and incidental to the registration of the transfer of the said portion. CATCHWORDS: Counsel: Mr Crowe for the Appellant Mr K. Wilson for the Respondent Solicitors: Messrs. Sherwood and Co. for the Appellant Messrs. Bowdens for the Respondent Hearing Date: 21/5/92 -- 5 of 6 -- 6 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No.99 of 1991 BETWEEN: DAVID FRANCIS COVACICH and SHIRLEY ANNE COVACICH (Plaintiffs) Respondents - and - VERONICA FAY MAGUIRE (Defendant) Appellant ____________________________________________________ The President Pincus JA Derrington J ____________________________________________________ Reasons of the Court delivered on the 25th day of June, 1992 ____________________________________________________ Appeal dismissed with costs, including reserve costs, if any, to be taxed. Orders below varied in the following respects: 1. The defendant is to do all such acts and execute all such documents as may be reasonable and proper to enable Cedar Co-Operative Housing Society (No.25) Limited to enter upon the defendant's land and value that portion identified in exhibit 3 as the one half of Lot 348 adjoining Lot 347 on registered plan 30542, as at 30th June 1990 including, within seven days from the date hereof, signing an authority enabling Cedar Co-Operative Housing Society (No.25) Limited to enter upon the defendant's land to conduct the valuation. 2. If the valuation so obtained is less than or equal to the amount of $7,073.24 there is to be no further payments as between the parties. 3. If the valuation exceeds the amount of $7,073.24 the plaintiffs are to pay to the defendant the amount of such excess within seven days of the receipt of such valuation. 4. Within seven days of receipt of the valuation the defendant are to do all such acts and execute all such documents as may be reasonable and proper to enable a transfer to the plaintiffs of the said portion. 5. Each party is to pay one half of the cost of valuation. 6. The plaintiffs is to pay the costs of and incidental to the registration of the transfer of the said portion. -- 6 of 6 --