Horswill v McClellan

Summary of salient evidence

1. In 2015 the plaintiffs were the owners of Lot 13 in Deposited Plan 258602 (351 West Portland Road, Sackville). The lot had an area of 1,100m2, with a frontage to West Portland Road about 21.5m wide. The defendants were the owners of Lot 11 in Deposited Plan 258602 (349 West Portland Road, Sackville). This lot, which could be described as a battle-axe block, was a much larger parcel of land that exceeded 10 hectares in area. Its handle extended in from West Portland Road on the southern side of the plaintiffs' lot. Its frontage to West Portland Road was also about 21.5m wide.
2. By September 2015 there had been some discussions between the plaintiffs and the defendants about a boundary adjustment. Mr Horswill made some inquiries with Hawkesbury City Council ("the Council") about such an adjustment. Mr Horswill deposed that on about 17 October 2015 he had a conversation with Mr McClellan in words to the following effect: Mr Horswill: Would you and Jen be interested in selling part of your land to us by way of a boundary transfer? We are interested in the section of land to the south of our place, with you being left with road access to West Portland Road. Mr McClellan: Yes I am happy about selling, but there are Family Court orders in Jen's favour relating to the sale of our house, so you will have to talk to her about it, and she can make the decisions. I can give you her mobile number if you like and you can call her. Mr Horswill: That would be great, thanks mate.
3. I note in passing that Mr McClellan deposed: At some time in August or September 2015 the first plaintiff, Rob Horswill (Rob) approached me at the Property and we had a conversation to the following effect: Mr Horswill: We would like to adjust the boundary between our two properties to extend our road frontage so that a future owner of your property cannot build a shed or similar right next to us on your side of our property. Mr McClellan: I am not in favour of adjusting the boundary but, in any case, due to the property settlement court order Jenny has been appointed trustee for sale of the property. You would have to talk to her. He then asked for Jenny's phone number which I gave him.
4. Mr Horswill further deposed that after he finished the conversation with Mr McClellan, he telephoned Mrs McClellan and had a conversation with her in words to the following effect: Mr Horswill: Hi Jen. Adam has told me that I should talk to you about a proposal by Kim and me to buy a small part of your land to the south of our place. You would have road access to West Portland Road with a 5.5 metre frontage, and the rest would be transferred by way of a boundary adjustment. We are prepared to pay $50,000 for the land, with 10% paid on registration of the first stage, then we pay you the balance upon completion of the second stage. We are prepared to pay all costs associated with the preparation and transfer. Ms McClellan: Oh I will have to think about it and I will call you tomorrow.
5. Mr Horswill continued: On 18 October 2015, I received a telephone call from Mrs McClellan. She said to me words to the following effect: Ms McClellan: I have spoken to Adam and we agree. What do we have to do? I do not have any money at the moment. Mr Horswill: That is ok we will pay for it all.
6. Ms McClellan deposed: In October 2015 I received a phone call from Rob Horswill. We had a conversation in words to the following effect: Mr Horswill: Would you and Adam be interested in undertaking a boundary adjustment? What I mean is, we will purchase the front paddock from you for $50,000.00. We don't want to build anything on the land but want to prevent the new owners building something there. Ms McClellan: What sort of area/dimensions are you thinking of? Mr Horswill: The gum trees would be on our side of the fence but the palm trees would be on your side. I have tried to discuss this with Adam but he told me I would have to speak to you. After discussing the matter with a real estate agent, I spoke to Mr Horswill on about 14 October 2015. We then had a conversation in words to the following effect: Ms McClellan: I am concerned about the electricity wires, asbestos contamination and my lack of free time and lack of funds to contribute to such a matter. I am happy to go ahead at the price of $50,000 provided you perform all the 'leg' work and pay for all the expenses involved in the adjustment. Mr Horswill: We are prepared to pay all of the conveyancing fees and we could both use the same conveyancer if you give your consent. We propose to pay 10% on registration of the first stage then we pay you the balance upon completion of the second stage. We will pay all costs associated with the preparation and transfer.
7. Later on 18 October 2015 Ms McClellan sent an email to the plaintiffs in the following terms: I wasn't able to find a good plan of our property showing the dimensions down the front. I left all the paperwork in relation to the property with Adam when I moved out. I recall Rob saying that the boundary adjustment would leave us with a 5-metre street frontage. Do you know the dimensions of the area you wish to purchase? I think that is my only question, thank you. So just to confirm the other details: you have offered to purchase an area of our land for $50,000; you would organise everything and pay for any expenses involved in the boundary adjustment such as surveyors, the Council, legal and fence moving, Is that correct?
8. Mr Horswill deposed that after receiving that email he had a further conversation with Ms McClellan in which she said words to the following effect: I am concerned about the electricity wires, asbestos contamination and my lack of free time and lack of funds to contribute to such a matter. I am happy to go ahead at the price of $50,000 provided you perform all the 'leg' work and pay for all the expenses involved in the adjustment.
9. On 21 October 2015 Mr Horswill sent an email to Ms McClellan, in response to her email of 18 October 2015, in the following terms: I'm confirming that is correct. We have arranged for the Surveyor and Conveyancing to enable D.A. To be lodged and will keep you up to date with progress.
10. On about 25 October 2015 Mr Horswill engaged a surveyor, Citisurv Pty Ltd ("Citisurv") to prepare a plan of subdivision and assist with preparation of an application to the Council. It appears that the plaintiffs also engaged Country Lane Conveyancing in relation to the matter. Ms McClellan sent an email to Country Lane Conveyancing on 8 November 2015 stating that she had no objection to them "acting on behalf of both of us".
11. On about 15 January 2016 Mr Horswill received a survey plan from Citisurv. As he explained in the witness box, this was a Plan of Subdivision of Lots 11 and 13 in DP 258602 which depicted a boundary adjustment between the lots which would produce a new Lot 1 with an area of 1919m2 (compared to the existing area of Lot 13 of 1,100m2). The width of the West Portland Road frontage for the new Lot 2 would be 5.5m (rather than the existing 21.5m for Lot 11).
12. The plaintiffs provided a copy of the plan to Ms McClellan on 30 January 2016. Mr Horswill gave oral evidence, which I accept, that he provided a copy of the plan to Mr McClellan on about 27 January 2016.
13. On 11 February 2016 the plaintiffs received a letter from the Council which included the following: Although undersized, 351 West Portland Road is to be increased in size from 1,100m2 to 1,919m2 to satisfy Clause 2.75(b)(iii) of the Exempt and Complying Development Codes SEPP. However, this additional area of 819m2 would translate to an increase of approximately 74% to the area of allotment. Such an increase is not considered to be represent [sic] a "minor change in the area of any lot" and accordingly the subdivision does not satisfy Clause 2.75(b)(vi) of the Policy. As a result the submitted subdivision cannot be considered 'exempt development'.
14. Mr Horswill deposed that he spoke to Mr McClellan and said: I have spoken to the Council and they have told me that any adjustment would have to be done in two stages due to planning requirements.
15. Mr Horswill also gave oral evidence to the effect that he similarly informed Ms McClellan of the need to proceed in two stages. I infer that by proceeding in that way the proposed development could be considered as "exempt development".
16. In any event, instructions were given to Citisurv to produce an amended Plan of Subdivision. A plan was prepared which would produce a new Lot 1 with an area of 1,450m2 and a new Lot 2 with a frontage to West Portland of 9.175m. It seems that this amended plan was the basis of a subdivision application made to the Council on about 2 March 2016. The Council provided a certificate of approval in respect of the proposed subdivision on 10 March 2016.
17. The Deposited Plan Administration Sheet which was subsequently lodged with the Land Titles Office in respect of the proposed subdivision was signed by both plaintiffs and by both defendants. The Plan of Subdivision of Lots 11 and 13 in DP 258602 was registered on 8 August 2016 to create Deposited Plan 1222450. The "first stage" of the proposed boundary adjustment was thus complete.
18. In the meantime, there were some further discussions between the parties. Ms McClellan deposed that in early March 2016 she had a conversation with Mr Horswill to the following effect: Ms McClellan: We need you to bring the boundary back towards your place by a metre which would make our front boundary 6.5 metres, otherwise we will have to spend money to get the driveway altered. Mr Horswill: That is ok.
19. Mr Horswill deposed that on 16 March 2016 there was a discussion with Ms McClellan to the following effect: Ms McClellan: Adam and I are happy to proceed if you agree to bring the boundary back towards your place by 1 metre. That would make our front boundary 6.5 metres. Otherwise, because of the curvature in the driveway, we will have to outlay money to get the driveway altered. Mr and Mrs Horswill: That should be fine. We can get the plans altered.
20. Ms McClellan sent an email to the plaintiffs on 16 March 2016 in the following terms: Just confirming our verbal discussions earlier this evening. We are willing to proceed with the boundary adjustment if the plans are altered to bring the boundary back towards your place by 1 metre. This would make our front boundary 6.5 metres and your front and back boundaries 36.52 metres each. I'm sorry this problem was not picked up sooner, but I think it best that it be resolved now so that there are no problems in the future.
21. It appears that instructions were given by the plaintiffs to Citisurv to produce an amended plan. By about 18 July 2016 Citisurv had prepared an amended Plan of Subdivision. This plan depicted the new Lot 1 with an area of 1,868m2 and the new Lot 2 with a West Portland Road frontage of 6.5m.
22. Also by that time, Mr McClellan had placed a number of star posts into the ground "consistent with the 1 meter [sic] shift from the surveyed markings requested by you to Rob" and "approximately 6.5 metres away from and parallel to our side boundary" as a visual reference "so it is understood what is being proposed and expected to be agreed to for all vested parties".
23. However, the "second stage" of the proposed boundary adjustment has not proceeded. Mr McClellan has declined to sign the further subdivision application to the Council even though that application, if approved, would result in the defendants' new lot having the requested 6.5m frontage to West Portland Road.
24. The position thus remains as it was when Deposited Plan 1222450 was created on 8 August 2016. Under that subdivision, Lot 1 has an area of 1,450m2. Part of the lot (that which was formerly in Lot 13 in DP 258602) is owned jointly by the plaintiffs, and part of the lot (that which was formerly in Lot 11 in Deposited Plan 258602) is owned jointly by the defendants.

Determination

1. The principal issue in the proceedings is whether there are sufficient acts of part performance to give rise to an equity in favour of the plaintiffs to have the agreement they allege completed. If such an equity is found to exist, the Court may order specific performance of an agreement that would otherwise be unenforceable due to a want of writing.
2. I recently considered the law relating to part performance in Phung v Phung [2019] NSWSC 117 at [59]-[63] where I stated: [59] The law relating to part performance has been heavily influenced by the speech of Lord Selborne in Maddison v Alderson (1883) 8 App Cas 467, recently described by Nettle and Gordon JJ in Pipikos v Trayans (2018) 92 ALJR 880; [2018] HCA 39 at [95] as a "seminal ex post facto rationalisation of the doctrine of part performance and the restrictions to which it is subject". [60] Lord Selborne stated (at 475-6): From the law thus stated the equitable consequences of the part performance of a parol contract concerning land seem to me naturally to result. In a suit founded on such part performance, the defendant is really "charged" upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. If such equities were excluded, injustice of a kind which the statute cannot be thought to have had in contemplation would follow. Let the case be supposed of a parol contract to sell land, completely performed on both sides, as to everything except conveyance; the whole purchase-money paid; the purchaser put into possession; expenditure by him (say in costly buildings) upon the property; leases granted by him to tenants. The contract is not a nullity; there is nothing in the statute to estop any Court which may have to exercise jurisdiction in the matter from inquiring into and taking notice of the truth of the facts. All the acts done must be referred to the actual contract, which is the measure and test of their legal and equitable character and consequences. If, therefore, in such a case a conveyance were refused, and an action of ejectment brought by the vendor or his heir against the purchaser, nothing could be done towards ascertaining and adjusting the equitable rights and liabilities of the parties, without taking the contract into account. The matter has advanced beyond the stage of contract; and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded. The choice is between undoing what has been done (which is not always possible, or, if possible, just) and completing what has been left undone. The line may not always be capable of being so clearly drawn as in the case which I have supposed; but it is not arbitrary or unreasonable to hold that when the statute says that no action is to be brought to charge any person upon a contract concerning land, it has in view the simple case in which he is charged upon the contract only, and not that in which there are equities resulting from res gestæ subsequent to and arising out of the contract. So long as the connection of those res gestæ with the alleged contract does not depend upon mere parol testimony, but is reasonably to be inferred from the res gestæ themselves, justice seems to require some such limitation of the scope of the statute, which might otherwise interpose an obstacle even to the rectification of material errors, however clearly proved, in an executed conveyance, founded upon an unsigned agreement. [61] Lord Selborne further stated (at 478-480): The doctrine, however, so established has been confined by judges of the greatest authority within limits intended to prevent a recurrence of the mischief which the statute was passed to suppress. The present case, resting entirely upon the parol evidence of one of the parties to the transaction, after the death of the other, forcibly illustrates the wisdom of the rule, which requires some evidentia rei to connect the alleged part performance with the alleged agreement. There is not otherwise enough in the situation in which the parties are found to raise questions which may not be solved without recourse to equity. It is not enough that an act done should be a condition of, or good consideration for, a contract, unless it is, as between the parties, such a part execution as to change their relative positions as to the subject-matter of the contract. Lord Hardwicke in Gunter v. Halsey said: "As to the acts done in performance, they must be such as could be done with no other view or design than to perform the agreement" ("the terms of which," he added, "must be certainly proved"). He thought it indeed consistent with that rule to treat the payment of purchase-money, in whole or in part, as a sufficient part performance: Lacon v. Mertens; Owen v. Davies, 1747. This Lord Cowper in Pengall v. Ross, and Lord Macclesfield in Seagood v. Meale had refused to do. On that point later authorities have overruled Lord Hardwicke's opinion; and it may be taken as now settled that part payment of purchase-money is not enough; and judges of high authority have said the same even of payment in full: Clinan v. Cooke; Hughes v. Morris; Britain v. Rossiter. Some of the reasons which have been given for that conclusion are not satisfactory; the best explanation of it seems to be, that the payment of money is an equivocal act, not (in itself), until the connection is established by parol testimony, indicative of a contract concerning land. I am not aware of any case in which the whole purchase-money has been paid without delivery of possession, nor is such a case at all likely to happen. All the authorities shew that the acts relied upon as part performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged: Cooth v. Jackson; Frame v. Dawson; Morphett v. Jones. "The acknowledged possession" (said Sir T. Plumer in Morphett v. Jones) "of a stranger in the land of another is not explicable, except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorize an inquiry into the terms, the Court regarding what has been done as a consequence of contract or tenure." "It is in general," said Sir James Wigram (Dale v. Hamilton) of the essence of such an act that the Court shall, by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in if there were no contract…But an act which though in truth done in pursuance of a contract, admits of explanation without supposing a contract, is not in general admitted to constitute an act of part performance taking the case out of the Statute of Frauds; as for example, the payment of a sum of money alleged to be purchase-money. The fraud, in a moral point of view, may be as great in the one case as in the other, but in the latter cases the Court does not in general give relief": (see also Britain v. Rossiter, per Lord Justice Cotton.) The acts of part performance, exemplified in the long series of decided cases in which parol contracts concerning land have been enforced, have been (almost, if not quite, universally) relative to the possession, use, or tenure of the land. The law of equitable mortgage by deposit of title deeds depends upon the same principles. [62] The principles enunciated by Lord Selborne have frequently been cited and approved by the High Court of Australia (see, for example, McBride v Sandland (1918) 25 CLR 69 at 77-8; Cooney v Burns (1922) 30 CLR 216 at 221-2, 229-230, 239 and 243-4; Regent v Millett (1976) 133 CLR 679 at 683). In Pipikos v Trayans (supra) the High Court expressly reaffirmed the correctness of Lord Selborne's test that acts relied upon as part performance "must be unequivocally, and in their own nature, referable to some such agreement as that alleged" (see Pipikos v Trayans (supra) at [43], [103]-[104] and [157]). [63] In Pipikos v Trayans (supra) Kiefel CJ, Bell, Gageler and Keane JJ stated: [49] The view that the court enforces the equities arising from partial performance, rather than the rights conferred by the parol contract itself, while attended with a degree of subtlety, has the powerful merit of being consistent with the Statute of Frauds. The view that part performance is concerned with matters of proof of the parol contract cannot stand with the Statute of Frauds, the evident purpose of which is to prevent the enforcement of a parol contract, however clear may be the proof of its making. [50] It is not correct to say that Lord Selborne's statement of principle evinces the view that part performance operates as acceptable evidence of the parol contract in question in place of the writing required by the statute. When Lord Selborne spoke of acts "unequivocally…referable" to "some such agreement", his Lordship was not speaking of the particular contract in question. The very circumstance that Lord Selborne spoke of referability to "some such agreement" itself suggests that the requirement is not concerned with proof of the particular contract in question, but with dealings between the parties which in their nature establish that the parties are in the midst of an uncompleted contract for the sale or other disposition of land. Given that part performance is relevant only in relation to contracts for the sale or other disposition of land, it is not difficult to appreciate that the acts described by Lord Selborne are acts unequivocally and inherently referable to a transaction for the sale or other disposition of the land. Lord Selborne was clear that unequivocal referability is concerned with the proof of acts partially executing a transaction that remains uncompleted, and that proof of the agreement that had been made was not required to show the equity to have the transaction completed. … [54] The equity to have the transaction completed arises where the acts that are proved are consistent only with partial performance of a transaction of the same nature as that which the plaintiff seeks to have completed by specific performance. At that point, regard may be had to the terms of the oral contract in order to ascertain the appropriate orders by way of specific performance. So, in Maddison v Alderson, Lord Selborne stated that the terms of the parol contract may be taken into account only when the equity to have the transaction carried to completion has been established and it becomes necessary to establish the terms of the order to be made. At that point : "The matter has advanced beyond the stage of contract; and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded." [55] In McBride v Sandland, Isaacs and Rich JJ explained that the logical order in which the issues in a case such as the present should be addressed is first to determine whether the acts performed establish the equity and then, and only then, to refer to the terms of the parol agreement in order to ascertain the terms in which the equity is to be enforced. (See also the judgment of Nettle and Gordon JJ at [99]).
3. In the present case, the plaintiffs principally rely upon the following as constituting acts of part performance: 1. the retaining by the parties of Citisurv to prepare Plans of Subdivision, firstly of Lots 11 and 13 in DP 258602, and secondly of Lots 1 and 2 in DP 1222450, for the purpose of a proposed boundary adjustment; 2. the obtaining by the parties of Council approval in respect of the proposed subdivision of Lots 11 and 13 in DP 258602; and 3. the obtaining by the parties of registration of Deposited Plan 1222450 which created the new lots in accordance with the proposed subdivision and in respect of which new Certificates of Title were issued.
4. It is necessary that acts relied upon as part performance be unequivocally, and in their own nature, referable to some such agreement as that alleged. Here, the plaintiffs allege a contract to acquire a portion of the defendants' land lying to the south of the plaintiffs' land. In applying the test of "unequivocal referability" the Court is not concerned with proof of the alleged agreement itself, or the terms of such agreement. The enquiry is not directed to whether the acts are unequivocally referrable to the particular contract alleged, but rather whether they are unequivocally referable to some contract of the general nature alleged. In the present case, the Court must consider whether the acts are unequivocally referable to a contract for the sale of part of the defendants' land. To that end, the proved circumstances in which the acts were done must be considered (see McBride v Sandland (1918) 25 CLR 69 at 78, cited with approval by Nettle and Gordon JJ in Pipikos v Trayans (2018) 92 ALJR 880; [2018] HCA 39 at [99]).
5. In my opinion, the acts relied upon by the plaintiffs are unequivocally, and in their own nature, referable to some agreement whereby the plaintiffs would acquire a portion of the defendants' land. Whether viewed individually, or taken together, those acts demonstrate that the parties were taking steps towards an outcome in which the parcel of land owned by the plaintiffs (Lot 13) would be augmented by incorporating an area of land to be excised from the parcel of land owned by the defendants (Lot 11). That in itself is indicative of a contract of the nature of that alleged by the plaintiffs. Moreover, even though no transfer of ownership has yet occurred, the acts, so far as they went, effected an alteration of the titles to the land held by the respective owners. The plaintiffs now own part of the new Lot 1 in DP 1222450, whilst the defendants now own the remaining part of that lot, as well as new Lot 2 in DP 1222450. The very nature of these dealings between the parties indicates that they are "in the midst of an uncompleted contract for the sale or other disposition of land" (see Pipikos v Trayans (supra) at [50]). It is my view that the acts of part performance relied upon by the plaintiffs are sufficient to give rise to an equity to have the transaction completed. In these circumstances, regard may be had to the alleged agreement itself, including its terms, in order to ascertain the appropriate orders by way of specific performance (see Pipikos v Trayans (supra) at [54]-[55] and [99]).
6. I am satisfied on the evidence adduced by the plaintiffs that by no later than February 2016, the plaintiffs and the defendants had reached a concluded agreement to the effect that in consideration of the plaintiffs taking the steps required to effect the boundary adjustment, and meeting all associated expenses, the defendants would transfer to the plaintiffs that portion of Lot 11 to the south of its boundary with Lot 13 save for that necessary to preserve road access to West Portland Road of a width of 5.5m (as shown on the Citisurv Plan of Subdivision produced in January 2016) for a price of $50,000. By that time, the extent of the area to be transferred had been clarified by the said Plan of Subdivision which had been provided to both defendants. The parties thereafter proceeded to take steps, consistent with the two stage approach suggested by the Council, towards effecting the necessary subdivisions. The agreement was later varied (on about 16 March 2016) to accommodate the defendants' request for the road access to be widened to 6.5m.
7. I should add that I consider that it is plain on the evidence that Ms McClellan acted as Mr McClellan's agent in her dealings with the plaintiffs. Moreover, it is clear that Mr McClellan held her out to the plaintiffs as his agent in that regard. In any event, Mr McClellan did not plead that any agreement made by Ms McClellan on his behalf was invalid due to a lack of authority.
8. The agreement, as varied, remains in a state of partial completion. The "second stage" of the envisaged process remains unperformed. A number of other steps would no doubt be required to be undertaken, culminating in the issuing of titles to new parcels of land in accordance with the agreement, and the payment by the plaintiffs to the defendants of the outstanding purchase price.
9. The circumstances of this case well illustrate the choice spoken of by Lord Selborne in Maddison v Alderson (1883) 8 App Cas 467 at 476 between undoing what has been done (which may be difficult), and completing what has been left undone. I cannot discern any grounds to withhold the making of orders for specific performance. Orders of that character are, of course, normally appropriate in relation to contracts involving the sale of land, and in my view are appropriate here.
10. The Court directs that within 14 days the plaintiffs bring in Short Minutes to give effect to these reasons. The Court will further order that the first defendant pay the plaintiffs' costs of the proceedings.

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