An oral agreement between brothers to transfer a property ends up in court…

After the Vietnam War, Cam Vinh Phung migrated to Australia from Vietnam and in the years following, he assisted his family, including his younger brother Cam Tai Phung, to also come to Australia.

Cam Vinh claimed that in January 2010 he came to an oral agreement with his brother Cam Tai for the transfer of a property in Swete Street Lidcombe to him on payment of $180,000. The amount of $180,000 was the amount owing by Cam Tai on mortgages on two properties that he owned.

Between 2010 and 2013, Cam Vinh paid a total of $90,000 to his brother and then commenced regular payments of $400 per fortnight. Cam Vinh moved into the Swete Street property and from March 2010 paid all of the outgoings. He also spent between $6,000 and $7,000 on renovations.

In September 2013, Cam Tai was traveling overseas and Cam Vinh asked him to give him something in writing about the arrangement between them. Cam Tai agreed to this and prepared and signed a short statement saying that he had agreed to “transfer“ the Swete Street property to his brother Cam Vinh.

In October 2016, Cam Vinh asked his brother to transfer the Swete Street property to him. Cam Tai refused claiming that the money was paid to allow Cam Vinh to live in the property during his lifetime.

Supreme Court proceedings were started and it was for the Court to decide whether or not Can Vinh was entitled to the Swete Street property.

The law provides that all dealings in respect of land must be in writing. Justice Darke found that the document in September 2013 did not meet the requirements of the law; for example, the document did not refer to the purchase price of $180,000.

However, that was not the end of Cam Vihn’s case. He further argued that the court of equity should intervened and order that the contract should be completed because of his part performance of it. His Honour looked at what had occurred: the $180,000 had been paid by Cam Vinh, he had moved into the Swete Street property, he had paid all of the outgoings and he carried out and spent money on renovations. His Honour said that paying the $180,000 was not enough on its own to support a claim for specific performance of the contract but when combined with the other matters, he reached the conclusion that a contract existed between the two brothers and he made the order that Cam Tai transfer the property to Cam Vinh.

Cam Tai submitted that the order for specific performance should not be made on the grounds of unfairness and hardship. Cam Tai claimed that the agreement was entered into because of undue influence by his brother, that the purchase price was below market price and that he would suffer hardship if he was required to transfer the property to his brother.

His Honour found that although Cam Tai respected his brother, he did not enter into the agreement because of the undue influence of his brother. As to the purchase price, the court found that although it was below market price there were other matters in the family that determined that it was not unjust; one fact was that Cam Vinh had helped Cam Tai pay the mortgage over the years.

His Honour ordered that Cam Tai transfer to Cam Vinh the Swete Street property. He also ordered that Cam Tai should pay the legal costs of Cam Vinh associated with the proceedings.