The recent case of Irvine v Dowling [2021] NSWSC 119 considered the writing requirements of an agreement to purchase an Estate property, and the entitlements of three siblings in relation to their father’s estate. Dowling was the registered proprietor of a Property of the estate, which she held on trust for herself and her siblings as beneficiaries of the estate. Dowling claimed that she was entitled to buy the Property as the highest bidder pursuant to a written Agreement between the three siblings that the property should be sold to the highest bidder by a private auction between themselves using written bids. Subsequently, the siblings agreed orally to a process of verbal bids (the Verbal Bid Agreement).

Another sibling, Irvine, commenced proceedings to have Dowling removed as executor due to her delay in administering the Estate. The case required the application of s 54A(1) of the Conveyancing Act 1919. Dowling claimed that she was entitled to purchase the property and that she had been ready, willing and able to complete that purchase.

The parties agreed that the written Agreement was valid and binding. It was a valid under s 54A because the successful bidder was required to enter a written contract to buy the property on specified terms. However, the Verbal agreement was not enforceable as it was a ‘purported variation’ because it sought to change the bidding method of the agreement but was not in writing (as required under s 54A). The Court held that while Dowling’s delay had been a breach of the Agreement, no party had purported to accept that breach and terminate the Agreement. She was thus entitled to purchase the property but, on equitable grounds was required to pay interest for her delay.

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