Jacobs v Kwaindu [1991] PNGLR 366

• Jurisdiction: Papua New Guinea
• Judge: Los J
• Judgment Date: 18 October 1992
• Citation: [1991] PNGLR 366
• Court: National Court
• Year: 1991
• Judgement Number: N1051

Full Title: Jacobs v Kwaindu [1991] PNGLR 366

National Court: Los J

Judgment Delivered: 18 October 1992

N1051

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JACOBS

V

KWAINDU

Waigani

Los J

20 September 1991

18 October 1991

VENDOR AND PURCHASER — Contract for sale of land — Evidence of — Note or memorandum in writing — Letter from vendor/landlord supporting application for finance — Letter sufficient — Specific performance granted — Fraud and Limitations Act 1988, s 4.

The Fraud and Limitations Act 1988, s 4, provides:

"No action shall be brought upon a contract for the sale or other disposition of land or an interest in land unless the contract, or some note or memorandum of the contract, upon which the action is brought is in writing signed:

(a) by the person against whom the action is brought; or ..."

In proceedings for specific performance of a contract for the sale of land the purchaser alleged an oral contract between himself as tenant and the vendor as landlord evidenced by a letter provided by the vendor to a bank for the purposes of the purchaser obtaining finance, which provided in part as follows:

"In those circumstances, I have decided to sell the property only for K32,000 and [illegible] for K3,000 taking the total purchase price to K35,000. I consider this figure as reasonable as after allowing for say K15,000 discount if I was to sell it to someone outside for K50,000."

Held

(Granting specific performance) The letter from the purchaser to the bank was a sufficient note or memorandum for the purposes of s 4 of the Fraud and Limitations Act 1988.

Cases Cited

Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647.

Clifton v Palumbo [1944] 2 All ER 497.

Ningiga v Koavea [1988-89] PNGLR 312.

Statement of Claim

These were proceedings in which the plaintiff sought specific performance of a contract for the sale of a house property.

Counsel

R Habuka, for plaintiff.

J Yagi, for defendant.

Cur adv vult

18 October 1991

LOS J: The plaintiff has brought an action against the defendant seeking an order for specific performance of a sale agreement over a house located at section 271, allotment 41, Erehu. In the alternative he seeks an order for damages for breach of contract by the defendant.

The plaintiff and his family moved into the house about July 1984 when he was in the employment of a company known as Theodist. The property was then owned by someone other than the defendant. In 1985, the defendant became the owner of the house through a mortgagee sale. The plaintiff continued to live in the house and his company was paying a rental of K500 per month to the defendant. The plaintiff ceased employment with Theodist in 1988 and he became personally responsible for payment of rents at the same rate.

Early this year, the defendant told the plaintiff to move out of this house. In a letter of 2 March the defendant wrote to the plaintiff and said: "I would like you to vacate the house completely by or before the 15th April 1991." Hence the dispute began. The plaintiff says an oral agreement was entered into between himself and the defendant in 1988 wherein the defendant had agreed to sell the house to him. The defendant says there was no agreement at all in 1988 but, if there was one, it had expired; that only in 1989 after a constant pleading by the plaintiff he had reluctantly agreed to sell the property to him.

Was there any oral agreement in 1988? No written material by way of an agreement or any written communication has been produced before the Court to confirm the alleged agreement. Therefore it is the plaintiff's word against the defendant's word. I have therefore to determine whether there was an agreement by inferences from other evidence, facts and conducts of the parties established by the evidence.

Before going into the evidence the defendant attacks the plaintiff's demeanour and says he has been evasive and has not answered the questions put to him. On the other hand it is said that the defendant has spoken with confidence and maturity and therefore he should be trusted. It is my respectful view that the plaintiff was not evasive as such; he was pre-emptive and verbose in many of the answers. The defendant acted and spoke with maturity because he had to act with caution, foresight and shrewdness.

It is clear to me that no agreement in a technical sense had been concluded in 1988. It is my view however that a loose kind of agreement in a layman's language had been reached either by acquiescence or by a non-negative reply given by the defendant just like the verbal agreement between them allowing the plaintiff to remain in the house and to continue to pay the same rate of rent to the defendant. There was no fuss on this; the defendant had benefitted from this informal arrangement. What remained to be agreed upon was the price. The plaintiff might have been slow to get the money but the bank did not refuse his application for a loan. There is no evidence that the defendant wanted an immediate sale. How could he contend on the one hand that there was no oral agreement on anything when on the other hand he insists there was a verbal agreement for an immediate sale. Further, how could he on the one hand say his letter of 19 March 1989 contained an offer for the plaintiff to consider and, on the other hand, ay the house was for immediate sale.

The letter of 19 March 1989 speaks for itself and speaks loudly. The nature of this letter indicates that this was not the first occasion on which discussions between the parties has occurred. The first...