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Part performance 1 CLMS 5

  Reitano v Reitano [2012] NSWSC 1127. Pembroke J.  17.9.12.

  Part performance relied upon to assert entitlement to conveyance of realty in the absence of writing.

  “I took no comfort from the defendant's affidavit which bore little resemblance to her oral evidence. The discrepancies between her oral and written evidence, and their marked difference in tone, tended to prove the wisdom of the aphorism that ‘the truth sometimes leaks out of an affidavit’: Thomas v SMP (International) PL [2010] NSWSC 822 at [23-28],” Pembroke J said [7].

  His Honour considered incidents of trust [25-27], quoting Byrnes v Kendle (2011) 243 CLR 253 at [114], before turning to part performance.

  Then [28], “Notwithstanding the formalities of writing required by ss 54A and 23C of the Conveyancing Act, if there are sufficient acts of part performance, the effect will be to defeat the reliance on the statute.”

  Pembroke J said: “The principle of part performance is clear. The classic statement is that of Gibbs J in Regent v Millett (1976) 133 CLR 679 at 683:

  ‘The acts relied upon as part performance must be unequivocally and in their own nature referable to some such agreement as that alleged…. it is enough that the acts are unequivocally and in their own nature referable to some contract of the general nature of that alleged’.

  Pembroke J referred to Lighting by Design (Aust) PL v Cannington Nominees PL [2008] WACA 23 [at 75-78, 156].

  “I am satisfied that there have been sufficient acts of part performance. By itself, I do not regard the execution of the Power of Attorney as a sufficient act of part performance. It was obviously considered to be a convenient means of facilitating the maintenance and management of the property by the plaintiff.

  “Taken in isolation, it is not capable of being unequivocally referable to some such agreement as that alleged. Nor is the payment by the plaintiff of his contribution towards the purchase price of the Alicante property sufficient by itself.

  “But taken as a whole, the conduct of the plaintiff and the defendant, including the payment by the plaintiff towards the Alicante property, and his possession and sole occupation of the Alexandria property over a period of 25 years, together with his expenditure on repairs and improvements and the payment of rates, taxes and other incidents of ownership, constitutes sufficient part performance,” his Honour sad [30].

  Plaintiff’s verdict.

  P: B Coles QC, M Rollinson, inst Di Lizio. D: P Lane, inst Perez Varela.


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