Carolyn Deigan as Executrix for the Estate of the Late James Boyd Lockrey v Barnard James Fussell

The executrix of the estate of the late James Boyd Lockrey (the appellant) appealed to the New South Wales Court of Appeal against a decision concerning the rescission of a contract for the sale of land. The dispute arose from the respondent's attempt to complete the purchase of land under a contract entered into by the deceased. The executrix had purported to rescind the contract before obtaining probate.

The primary legal issues before the Court of Appeal were whether the executrix validly rescinded the contract prior to obtaining probate, and if so, whether that rescission was retrospectively validated upon her subsequent obtaining of probate. Further issues concerned the construction of a clause providing a right to rescind, whether such a right was available to the surviving party to the contract notwithstanding the vendor's death, and whether the solicitor named in the contract could exercise this right. The court also considered whether the contract had been breached due to a five-year completion period and the parties' inaction, and whether the estate had taken advantage of its own wrong by serving a second rescission notice.

The Court of Appeal held that the executrix had the power to rescind the contract before obtaining probate, relying on sections 44 and 61 of the *Probate and Administration Act 1898* (NSW). The court reasoned that the right to rescind was a personal right that could be exercised by the executrix in her capacity as the legal representative of the deceased's estate. The court found that the rescission was valid when given and did not require retrospective validation upon obtaining probate. The appeal was allowed, the previous orders were set aside, and the summons was dismissed. The court declared that the contract for sale had been rescinded no later than 16 October 2017, reserving the proceedings for further consideration by the primary judge and granting liberty to apply for consequential orders. The respondent was ordered to pay the appellant's costs of the appeal.