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[2025] NSWSC 217
General information, not legal advice.
Supreme Court of NSW
2025-03-19
Pike J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Brady v Brady [2025] NSWSC 217
Hearing dates: 12 March 2025
Date of orders: 19 March 2025
Decision date: 19 March 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision: See paragraph [83]
Catchwords: CONTRACT – loan contract involving sale of land – oral contract – part performance of an oral contract – no question of principle
EQUITY – Equitable remedies – specific performance – whether purchaser ready, willing and able to complete – no question of principle
Legislation Cited: Conveyancing Act 1919 (NSW) ss 23E(d) and 54A(2)
Uniform Civil Procedure Rules 2005 (NSW) r 14.26
Cases Cited: Kazal v Thunder Studios Inc [2023] FCAFC 174
Macdonald v ASIC (2007) 73 NSWLR 612
Phung v Phung [2019] NSW 117
Pipikos v Tayans [2018] HCA 39
Quality Bakers Australia Pty Ltd v Yassim Modern Bakery Pty Ltd [2007] NSWSC 804
Sneddon v New South Wales [2012] NSWCA 351
Tran v Bakour [2025] NSWSC 101
Texts Cited: Nil
Category: Principal judgment
Parties: Stephanie Ruth Brady (plaintiff)
Andrew Scott Brady (defendant)
Representation: Counsel:
M Pringle (plaintiff)
Solicitors:
Kennedy & Cooke (plaintiff)
Self-represented (defendant)
File Number(s): 2024/00097906
Publication restriction: Nil
The plaintiff and defendant are sister and brother respectively. They are presently the registered proprietors as tenants in common in equal shares of a property situated at and known as XX South Street, Ulladulla, New South Wales, 2539, comprised in folio identifier XX/XXXXX (Property).
By her statement of claim filed 14 March 2024, the plaintiff seeks in effect, an order that the defendant transfer to the plaintiff his one half share of the Property. Underlying the orders sought is a loan contract that the plaintiff contends was entered into with the defendant whereby upon repayment of the loan by the plaintiff to the defendant, the defendant would transfer his one half share to the plaintiff.
At no stage has the defendant taken an active role in the proceedings. I set out the detailed procedural history of the proceedings below.
On 12 March 2025, the matter was heard on a final basis. Ms M Pringle appeared for the plaintiff. There was no appearance for the defendant, he having emailed my chambers on the morning of 12 March 2025 indicating that he would not participate in the hearing “in any form” because of apparent medical issues. Given the history of the matter, as set out below, I determined to proceed with the hearing.
For the reasons set out below, I am satisfied that the plaintiff is entitled to succeed and to have orders made to allow the one half interest of the defendant in the Property to be transferred to the plaintiff in exchange for the plaintiff paying to the defendant the amount remaining owing under the loan.
The procedural history of the proceedings is as follows.
The proceedings were commenced by statement of claim filed by the plaintiff on 14 March 2024. The statement of claim was served on the defendant on 18 March 2024. A substantive affidavit of the plaintiff made 8 February 2024 was filed on 17 April 2024 and served on the defendant on 9 May 2024.
The defendant has not appeared (save for one occasion) at any directions hearing or filed a notice of appearance, although he has sent some communications to the Court.
On 19 April 2024, Peden J made orders for the defendant to file and serve any defence by 10 May 2024 and for the defendant to serve evidence on which he relies by 28 June 2024. No defence was filed nor served, neither was any evidence.
On 4 July 2024 the defendant sent an email to the chambers of the Judge managing the Real Property List (List) making certain statements.
The email contained an apology from the defendant for not attending Court in person, “however I am currently suffering from a respiratory infection”.
On 5 July 2024, Peden J made further orders extending the time for the defendant to file and serve any defence to 26 July 2024 and to serve any evidence by 27 September 2024. No defence was filed nor served, neither was any evidence. The defendant did not appear by AVL when the matter was dealt with but subsequently appeared by AVL in the absence of the plaintiff’s counsel.
Peden J told the defendant when he appeared on the AVL that if he wanted to defend the matter he would need to prove whatever it is he wanted to say by putting on an affidavit which is sworn or affirmed. A copy of the orders made were sent to the defendant.
On 1 October 2024, the defendant sent an email to the chambers of the Judge managing the List indicating he would not be able to attend Court on 4 October 2024 or participate in teleconferencing as he was undergoing radiotherapy treatment for prostate cancer. He asked for the Court to allow him an extension to recover from the treatment and to present his evidence.
On 4 October 2024, Peden J made orders noting the defendant had not complied with the extended timetable made on 5 July 2024, the plaintiff intended to apply for summary judgment, and stood the matter over to 1 November 2024.
On 1 November 2024, Peden J made further orders extending the time for the defendant to file and serve any evidence to 22 November 2024 and that if the defendant fails to comply with this extended timetable the defendant may not file or serve further evidence without the leave of the Court. An AVL link was provided to the defendant to appear but he did not. No evidence was filed nor served in response to the orders.
On 26 November 2024, the defendant emailed the Chambers of the Judge then managing the List, a document he described in his email as his “submission in this case”. A second email was sent later that day.
On 29 November 2024, Peden J made orders noting the defendant had not complied with the extended timetable made on 1 November 2024 and granted leave for the plaintiff to file a notice of motion seeking summary judgment.
The plaintiff filed a notice of motion on 9 December 2024 seeking summary judgment. The plaintiff filed further affidavits in support of the summary judgment application on 10 December 2024. The motion was returnable on 7 February 2025.
On 7 February 2025, I stood the matter over to 20 February 2025 for a hearing of the plaintiff’s motion for summary judgment. The plaintiff notified the defendant of the hearing on 20 February 2025.
On 17 February 2025, the plaintiff filed written submissions in support of the summary judgment application. The defendant emailed my chambers on 17 February 2025 with the “key points” of the defendant’s evidence.
On 18 February 2025, the defendant emailed my chambers advising that due to ongoing medical conditions he would not be attending the hearing on 20 February 2025.
On 20 February 2025, I listed the matter for final hearing on 26 February 2025 and stood the motion for summary judgment over to 26 February 2025.
On 23 February 2025, the defendant emailed my chambers seeking a two week adjournment due to ongoing medical conditions. The defendant attached a letter from a doctor from 6 January 2023 as evidence of his medical conditions. The plaintiff did not consent to the adjournment.
On 25 February 2025, the defendant emailed my chambers providing what appeared to be further substantive submissions and attached X-ray reports from December 2024.
On 25 February 2025, I adjourned the matter to 12 March 2025 for final hearing and I also adjourned the plaintiff’s motion for summary judgment to that day.
I granted leave to the defendant to appear by AVL at the hearing on 12 March 2025 and my Associate provided him with a link on 11 March 2025.
At 7.52 am on 12 March 2025, the defendant sent a further email to my chambers saying that he would not be able to participate in the hearing on 12 March “in any form, due to my ongoing health issues”. The email went on to make a “statement to the court” about the substantive matter.
At 9.21am on 12 March 2025 my Associate emailed the defendant informing him that the hearing would proceed in his absence.
The hearing proceeded on the basis of the evidence relied on by the plaintiff which principally consisted of a substantive affidavit made by the plaintiff.
The plaintiff obviously did not tender the communications between the defendant and the Court in which the defendant made various assertions about factual matters. These communications were tendered at my request and admitted only as evidence of the fact of the communications and not evidence of the truth of the assertions contained in them. They demonstrate that the defendant is clearly aware of the proceedings and he has been given ample opportunity to participate but has chosen not to.
The plaintiff gave evidence to the following effect, which I accept.
In January 2016, the defendant entered into negotiations to purchase the Property. At the date of purchase, the Property comprised an unimproved block of land. The purchase price of the Property was $185,000.
Between 13 January 2016 and 5 February 2016, the defendant said to the plaintiff:
I have just purchased a block of land in Ulladulla. I am so pleased that I have invested in a block of land. I am now a property owner.
That’s great. Congratulations. I enquired at my bank about a home loan and was advised that I was only eligible to borrow $280,000 at this stage, which is not enough to cover a home and land package, so I am really happy for you.
| Defendant: | I have a deal for you… how about if I put you on the title of the land, then you can apply for the home loan to cover the cost of building a home on the block. You can pay me back for the land and pay back the home loan separately through the bank. Once you have paid me back for the land, the house and land package can then be yours. | | Plaintiff: | Oh wow, that would be great, thanks. I could set up direct debits to repay you. Maybe we can go and look at display homes to research the cost of building a home. | | Defendant: | Firstly, I will make an appointment for us to see the conveyancer to add your name to the title. |
| Defendant: | This is my sister, Stephanie Brady. I want to add her as co-owner of the land title for XX South Street, Ulladulla that I have recently purchased as we have come to an agreement together. | | Ms Payne: | I will need you to sign some documents to formalise that arrangement. |
The defendant paid the purchase price for the purchase of the Property. On 24 March 2016, Southern Property Transfers confirmed to the plaintiff that the defendant and they had been registered as the co-owners of the Property.
After the purchase, the plaintiff and defendant began to research project homes both online and in person, occasionally visiting display home villages.
On or about 12 October 2016, the defendant won $1 million in a Lotto draw. After the Lotto win, the plaintiff and the defendant had a conversation which included the following exchange:
| Defendant: | You won’t need to get the bank loan now as I can loan you the money to pay for the house and you can pay me back for the house and land. That’s going to save you the bank interest and you’ll be making repayments just to me instead of to me and to the bank. | | Plaintiff: | Thank you so much Andrew. I can’t believe how lucky I am. |
Seeing as this will be your home Stephanie, I don’t need to go to these Selections Meetings. You are the one who needs to choose the décor.
On 11 January 2017, as co-owners of the Property, the plaintiff and defendant signed a New South Wales Residential Building Contract for New Dwellings with McDonald Jones.
On 30 October 2017, the plaintiff signed a pre-handover inspection and certificate of practical completion with McDonald Jones. Thereafter, in October 2017, the plaintiff engaged Ulladulla Shower Screens and Glass to supply and fit nine flyscreens and three screen doors at the Property, paying the invoice of $1,808 in full. She also paid Nowra Flooring Xtra $3,356.80 to install plantation shutters and blinds at the Property.
On 17 November 2017, the plaintiff moved into the completed house on the Property and continues to reside in the house. She lives there with her son. The defendant has never resided at the Property.
In early 2018, the plaintiff bought a clothesline at Bunnings which cost her $200.
In January 2018, she engaged ABC Accredited Building Certifiers to carry out an inspection at the Property, paying ABC’s fee of $322 in full.
In February 2018, she engaged EuroSolar to install 22 solar panels and an inverter at the Property, paying the invoice of $5,699 in full.
On 9 March 2018, the plaintiff commenced repaying the loan from the defendant at the rate of $500 per week.
In June 2018, the plaintiff made an application with New South Wales Government Revenue for a First Home Owner’s Grant (Grant). She filled out the payment details on the application form in favour of the defendant, as this sum would be attributed to repayment of the loan from the defendant. In June 2018, she received a letter dated 13 June 2018, approving the Grant. The Grant of $10,000 was paid to the defendant’s bank account as part payment of the loan.
At various times thereafter, the plaintiff has paid various amounts for the upkeep and maintenance of the Property, including paying for pest control, installation of light and exhaust fans, installation of security doors, tiling work, leaf gutter guard and the like.
In late January 2021, the plaintiff says that she was under a lot of financial stress as a result of the COVID-19 pandemic. Her business as a travel agent was profoundly affected by the lockdowns. At the time she went to see the defendant to discuss the loan repayments with him. She asked him if it would be possible for her to make reduced loan repayments of $100 per week, whilst she was reliant on JobKeeper. The defendant told her to “relax”.
From Friday 5 February 2021, she started making the reduced payment amount of $100 per week.
In early March 2021, the defendant demanded that the plaintiff repay the shortfall and the balance owing on the loan. The plaintiff said that she was not presently able to do this, but as soon as she is able she will apply for a home loan to finalise the loan with the defendant.
On 13 March 2021, the plaintiff transferred a “top-up” payment of $2,400 to the defendant’s bank account to bring the repayments up to date.
The plaintiff thereafter applied for a loan but was not successful.
The plaintiff has continued to make regular weekly repayments of $500 to the defendant’s bank account. The repayments are referred to in the plaintiff's bank account as “loan repayments”.
In July 2022, the plaintiff received conditional loan approval to pay the defendant out. The loan approval was conditional upon the defendant accepting the offer to pay him out. Thereafter, there was correspondence between the plaintiff and the defendant (through the plaintiff’s solicitor).
The defendant contended that the plaintiff has only ever been a “house sitter/temporary tenant in my investment property”.
In addition to the payments that I have set out above, the plaintiff gives evidence (which I accept) that:
(a) since 25 August 2016, she has paid all Shoalhaven City Council rates levied on the Property; (b) since 4 November 2016, she has paid all Shoalhaven City Council water accounts billed to the Property; and (c) since November 2017 she has paid home and contents insurance for the Property with NRMA.
The plaintiff says that at all times since the defendant offered to put her name on the title of the Property and “lend the money to buy my own home when he won Lotto”, she has paid for everything in about and to do with the Property. She has also maintained the Property.
The plaintiff says that her total indebtedness to the defendant, from 2017 was:
(a) $185,000 being the purchase price of the land; and (b) $291,000 being the contract price for the construction of the house.
Since 9 March 2018, she has repaid the loan from the defendant at the agreed rate of $500 per week.
Between late September 2022 and late August 2023, the plaintiff accumulated the repayments and in late August 2023, she transferred a total of $21,500 to the defendant’s account in five instalments.
On Friday 1 September 2023, she resumed making the regular repayments of $500 per week to the defendant.
In addition to the regular weekly repayments, the plaintiff has made or directed the following additional payments to the defendant’s account:
(a) in June 2018, the Grant of $10,000; (b) on 21 June 2019, a lump sum of $10,000 into the defendant’s account; and (c) on 11 November 2022, another lump sum of $3,000 to the defendant’s account.
As at the date of hearing, the balance owing by the plaintiff to the defendant is $276,015.34. A further repayment of $500 was to be made on 14 March 2025.
As at the date of judgment, the balance owing on the loan is thus $275,515.34.
The plaintiff has obtained a loan from Bendigo and Adelaide Bank for $310,000 to enable payout of the loan.
The defendant has not filed a defence. Under Uniform Civil Procedure Rules 2005 (NSW) r 14.26, the allegations of fact contained in the statement of claim are deemed to be admitted: see Macdonald v ASIC (2007) 73 NSWLR 612 at [49]; Quality Bakers Australia Pty Ltd v Yassim Modern Bakery Pty Ltd [2007] NSWSC 804 at [2]; Kazal v Thunder Studios Inc [2023] FCAFC 174 at [202]; cf Sneddon v New South Wales [2012] NSWCA 351 at [152] per Macfarlan JA.
In any event I accept the evidence of the plaintiff as set out above.
The plaintiff seeks an order for specific performance of the loan agreement, being the oral agreement as set out above. The effect of agreement was that the defendant agreed to loan to the plaintiff the purchase price of the land and the building cost and that on repayment of the loan, the remainder of the title to the Property would be conveyed to the plaintiff.
The plaintiff accepts that there is no memorandum or note, but relies on the law relating to part performance: see ss 23E(d) and 54A(2) of the Conveyancing Act 1919 (NSW).
In Pipikos v Tayans [2018] HCA 39, Nettle and Gordon JJ said at [84]:
The equitable doctrine of part performance has been described as a mystery and an anomaly. As Stramignoni has written, the mystery is twofold: when was the doctrine of part performance first employed and why was it not mentioned in s 4 of the Statute of Frauds 1677? As to the first, legal historians are now largely agreed that the doctrine was first employed by Lord Nottingham in the Court of Chancery during the latter half of the 17th century. Its origins lay in the established equitable precept that part performance on one side required as a matter of conscience, civilis et politica, that performance should be ordered on the other side. Why the doctrine was not mentioned in the Statute remains a mystery, although it may be conjectured that its authors, including Lord Nottingham, the so-called "Father of Equity", did not conceive of the Statute as applying to cases involving part performance.
[100] Four years later, in Cooney v Burns, this Court unanimously accepted what was said by Lord Selborne in Maddison v Alderson and Isaacs J added to what he and Rich J had said in McBride v Sandland that what equity enforces under the doctrine of part performance is not a contractual right but an equity which arises from such acts of part performance of the alleged contract as would make it a fraud upon the plaintiff for the defendant to recede from the contract, and, therefore, that the test for the doctrine's engagement is whether the defendant has gone so far, as purchaser, directly or indirectly exercising, or, as vendor, in permitting the purchaser directly or indirectly to exercise, rights of ownership over the property in suit as to make it a fraud on the plaintiff unless ownership is completely and effectively conveyed pursuant to the alleged agreement. Consequently, as his Honour observed:
"[T]here is always in part performance the actual transfer by enjoyment, directly or indirectly, of some right of ownership which the legal title would confer." (emphasis in original)
[101] The point was later reiterated by Dixon J in J C Williamson Ltd v Lukey and Mulholland thus:
"In cases of specific performance, the party is said to be charged upon the equities arising out of the acts of part performance and not merely upon the contract. The acts of part performance must be such as to be consistent only with the existence of a contract between the parties, and to have been done in actual performance of that which in fact existed."
The law in relation to part performance was also reviewed by Darke J in Phung v Phung [2019] NSWSC 117 at [59] ff.
In the circumstances of the present case, I am satisfied of the agreement between the plaintiff and the defendant whereby the defendant agreed to loan the purchase and build monies to the plaintiff and that on repayment of the loan by the plaintiff to the defendant, the title to the Property would be transferred to the plaintiff.
The contention by the defendant in correspondence to the effect that the plaintiff is a mere tenant in the defendant's investment property is inconsistent with the objective circumstances. These circumstances include the fact that the plaintiff is registered as a half owner of the Property, that the plaintiff has made very substantial improvements on the Property and paid all outgoings and paid the $10,000 Grant to the defendant. On this last aspect, the necessary pre-condition for the Grant was that it was the plaintiff’s house for her to live in, not that she was a mere tenant of the defendant. The defendant obviously received the lump sum payment without demur.
I am satisfied that the plaintiff has established the existence of acts that are unequivocally, and in their own nature, referable to the contract for the sale of the Property. In particular, I consider that at least the plaintiff’s acts in taking possession of the Property, carrying out improvements to it, paying the outgoings in respect of the Property, paying the Grant to the defendant and making regular loan repayments to the defendant, together amount to sufficient acts of part performance.
I am also satisfied that the plaintiff is ready, willing and able to complete the agreement and pay the balance of the loan to the defendant. I recently considered the law in relation to whether a party is ready, willing and able in Tran v Bakour [2025] NSWSC 101 at [85] ff. I am satisfied that the plaintiff has conditional loan approval to pay the loan out – the balance being $275,515.34.
I am therefore satisfied that orders for specific performance should be made.
In circumstances where the defendant has failed to engage in the Court’s process, the plaintiff submitted that it would be appropriate for the plaintiff to pay the balance into Court and for the Registrar to be appointed to execute such documents as may be necessary to transfer the defendant’s half share of the Property to the plaintiff. Whilst I accept that the defendant has failed to engage in the Court’s process to date, I think it is appropriate that the defendant be ordered to execute a transfer in registerable form and do all things necessary to permit the defendant’s half interest to be transferred to the plaintiff in exchange for repayment of the amount of the loan and that, if the defendant fails to comply with these orders, then orders should be made authorising the Registrar to execute the necessary documents in the defendant’s name.
It is also appropriate that the defendant be ordered to pay the plaintiff’s costs of the proceedings.
The Court orders that:
Declare that the loan contract (Agreement) between the plaintiff as borrower and the defendant as lender, in respect of the purchase and improvement of the land situated at and known as XX South Street, Ulladulla, NSW, contained in folio identifier XX/XXXXX (Property) is valid and enforceable and can be specifically performed.
Order that the Agreement be specifically performed.
Order the plaintiff to provide to the defendant by 25 March 2025 a transfer in registerable form to transfer the defendant’s interest in the Property to the plaintiff (Transfer).
Order the defendant to execute the Transfer by no later than 2 April 2025 and to provide the executed Transfer to the plaintiff’s solicitor by no later than 9 April 2025.
Order the plaintiff to pay to the defendant the sum of $275,515.34 in exchange for receipt of the executed Transfer.
Order the parties to do all things necessary to effect the transfer of the defendant’s one half interest in the Property to the plaintiff in exchange for the payment of $275,515.34.
In the event that the defendant fails to comply with orders 5 and 6 above by 15 April 2025, order that:
(a) the Registrar be authorised to execute the Transfer on behalf of the defendant and do all things necessary to effect the transfer of the defendant’s one half interest in the Property to the plaintiff; (b) order the plaintiff to pay into Court the sum of $275,515.34; (c) order that upon payment into Court in accordance with (b) above, the executed Transfer be released to the plaintiff.
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Brady
Brady [2025] NSWSC 217
(2007) 73 NSWLR 612