Sneath & Anor v Sneath & Ors [2014] QSC 152

The applicant submits that, characterised in this way, the qualifications imposed by the first respondent with respect to his willingness to pay the amount he freely acknowledges as being outstanding under the oral contract he now relies on, constitute in themselves a renunciation of the alleged contract on the part of the first respondent. The applicant submits that the first respondent's insistence upon those matters as a condition of his performance of his outstanding promise to pay, amounts to a renunciation of the alleged contract on the well-established premise that a party renounces a contract by his or her unilateral insistence as a condition of performance upon a requirement for which he or she has no contractual warrant or authority. It is submitted that, by pursuing the directions now sought in this proceeding, the applicants have, at least tacitly, accepted that renunciation.

The applicant's renunciation argument is not without force. In Freedom Homes Pty Ltd v Botros [1999] QCA 150; (2000) 2 Qd R 377 at 379-380, McPherson JA observed:

"A contracting party is not entitled, unilaterally, to impose on the other party conditions of a kind for which there is not contractual warrant or authority... It is true that a party is not lightly to be taken to have repudiated a contract in that sense: see DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423, 433; but an inference to that effect was fairly capable of being drawn here, and in my opinion it was on the material before us correctly drawn."

On the limited materials before me, I would not be confident such an inference would inevitably be drawn by a Court in the event of litigation. Its premise is that there was a contract which was brought to an end. That premise is not actually accepted by the applicant, in that the applicant does not actually accept the existence of the contract. Moreover, the applicant's offer was itself conditional on other matters, thus complicating the foundation for the inference now sought. There further lingers considerable uncertainty as to the consequences of such a conclusion so far as Andrew Sneath's alleged part payment is concerned.

Given those considerations, I would not draw the inference of renunciation as advanced in the current application. That is to say nothing, though, of its potential ultimate fate in any litigation. My hesitation is born simply by reason of the state of the present materials.

The applicant also asserts that Andrew Sneath's potential claim is doomed to fail by reason of s 59 of the Property Law Act 1974, which provides:

"No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised."

The applicant submits that s 59 would serve to preclude the enforcement of the alleged oral contract of sale by the first respondent against the estate of the deceased for want of a written contract or any memorandum or note of the contract signed by the deceased or by some person lawfully authorised on the deceased's behalf. However, as the applicant's counsel properly acknowledged in argument, there might be circumstances in which equity may assist a party in Andrew Sneath's alleged position, for instance, through the imposition of a resulting or constructive trust.

As was submitted, the trend of present thinking might arguably favour the need for full payment of a purchase price for such a trust to arise. However, the uncertain and effectively incomplete state of factual material before me makes it difficult to arrive at a confident conclusion in relation to the potential imposition of a trust in the circumstances of a case like this. The self-represented Andrew Sneath did not articulate an argument on this feature of the matter, but taken at its highest, his evidence, albeit very vague, is that he has part paid for the land and that may have the potential to ground some form of case capable of withstanding summary judgment. Whether or not in reality it does so is impossible to assess on the state of the present materials.

The current difficulty is that I am not equipped with sufficient information to infer that Andrew Sneath has no real prospect of raising a case and succeeding in this context. On the limited evidence before me, his prospects of doing so appear bleak. It might be that, if and when more is known, I may have the requisite degree of confidence submitted for by the applicant. However on the presently uncertain materials, taking them at their most favourable for the first respondent, I conclude the executors would not presently be justified in transferring lot 45. I stress that conclusion is reached principally having regard to the earlier caution, to which I referred, that ought be exercised having regard to the potential adverse consequences for the estate of litigation.

I emphasise further that that is only my present view. The applicant submitted that a party may by his or her own activity deprive him or herself of the right to specific performance of a contract or other relief in specie in equity. It was submitted that where here, Andrew Sneath had failed to take steps to pursue such a claim within a reasonable period of becoming aware of his entitlement, equity would consider him to have abandoned his entitlement to relief in specie and would leave the parties to their remedies at law. While acknowledging that the extent of the delay that might be thought reasonable in a given case will depend upon the circumstances, it was submitted in the circumstances of this case that such a period has long passed.

I do not accept, given the intervening history of dialogue between Andrew Sneath and the executors over this issue, that there has been such a period of inactivity that the transfer should proceed. That is, however, a finely balanced determination. Andrew Sneath has known for long enough that if he has a case, it ought be advanced. The timing of the distribution of his father's estate cannot be indefinitely delayed by his inaction or ineffectiveness in pursuing his alleged entitlement.

In my view, the executors would be entitled to make the transfer if they notify Andrew Sneath of a reasonable period within which he ought institute a claim in respect of the alleged contract to sell lot 45 and he does not within that period institute such a claim. I would think no more than 28 days would be needed for such a period to be reasonable, but I leave the precise timing in that regard to the applicants, who may be aware of matters that are not presently before me.

Obviously, if such a claim is instituted, there is nothing to prevent it being brought to an end early if it turns out to be without substance.

It follows that I propose to make the orders sought with that significant qualification to that part of the order that relates to the transmission of lot 45. So far as the foregoing of the claim to the cattle, the Nissan Navara utility and the deceased's personal papers and effects are concerned, as already explained, the relevant orders ought be made. So, too, ought the order relating to the payment of the interim distributions to the second respondent and third respondents. I reach that conclusion particularly having regard to the remaining available fighting fund in the event of any litigation, in combination with the reality that the distributions to them, even were Andrew Sneath to succeed as far as the oral contract is concerned, are unconnected and would be unaffected.

(1) That the applicants in their capacity as the appointed executors and trustees of the last will of the late William Andrew John Sneath, dated 25 January 2011, would be justified in:

(a) proceeding to transmit title to that piece or parcel of land situated in the county of Nares, parish of Dirran, described as lot 45 on Crown plan NR431, title reference 20781095, to William Douglas Sneath in accordance with clause 5 of the said will if the applicants notify the first respondent of a reasonable period within which he should, if he intends to do so, file a claim in respect of the alleged oral contract to sell the lot and if the first respondent does not within that period institute such a claim;

(i) the 123 head of cattle thought to have been owned by the deceased as at 30 June 2012 and any progeny of those cattle;

(ii) a Nissan Navara utility, former registration number 975 DXA, thought to have been owned by the deceased;

(c) payment of an interim distribution to each of the second respondent and the third respondent in the sum of $250,000.

HIS HONOUR: The first respondent submits the parties should bear their own costs. The applicants, on the other hand, submit that, given the outcome of the case, it is an appropriate matter in which to, in effect, make dual orders.

The argument, in essence, is that significant aspects of what was argued before me on the part of the first respondent have failed and have failed in circumstances where, as I explained in my primary reasons, in substance Mr Andrew Sneath was advancing arguments, really, as a third party, rather than as a beneficiary. It is submitted, and I accept, that, given that status, in substance, it is appropriate to approach costs in the normal way so that they would follow the event and the first respondent, having taken his chances in advancing arguments which were, in substance, arguments in his capacity as a third party, ought bear the costs of doing so.

However, the application did not succeed in its entirety, in the sense that I heavily qualified the proposed order sought in relation to lot 45 by giving the first respondent, in effect, an opportunity within a reasonable period to properly advance a case. Notwithstanding that that assessment was finely balanced, the fact is he has received the benefit of that cautious approach by me and in that sense that determination is of assistance also to the estate, for it provides guidance from which the estate and in turn the beneficiaries collectively benefit. In those circumstances, such costs as relate to that feature of the matter are more appropriately recovered by the applicants out of the estate in the conventional way in matters of this kind on the indemnity basis.

As to what apportionment ought occur, there were many more arguments litigated than merely the argument relating to the alleged oral contract relating to lot 45. However, the exercise is not merely numerical. The argument pertaining to lot 45 realistically incurred a more significant amount of time than any other argument. The concession of the applicants that a 50 per cent apportionment for the purpose of costs assessment is reasonable. In the circumstances, I propose to make an order reflecting that approach.

(2) The first respondent pay the applicants half their costs of and incidental to this application to be assessed on the standard basis, and the applicants may otherwise recover their costs assessed on the indemnity basis out of the estate.

In respect of the orders I have given, I have amended the draft order before me so that it adopts the form of words I have used. I order as per that amended draft signed by me and placed with the papers.