7, 8, 9 March 2018; 27 April 2018; further written submissions ending 15 May 2018
Date of orders:
19 September 2018
Decision date:
19 September 2018
Jurisdiction:
Equity - Real Property List
Before:
Parker J
Decision:
Specific performance granted.
Catchwords:
CONTRACTS – clause granting “either party” a right to rescind contract in the event of death or mental incapacity – construction
CONTRACTS – right of party to rescind contract on party’s death – whether right may be exercised by executor named in party’s will before grant of probate – implication
CONTRACTS – termination and rescission – rescission – limitations on rescission – party relying on own breach to rescind contract – whether reliance on delayed completion of contract disentitles vendor from exercising contractual right to rescind
EQUITY – equitable remedies – rectification – alleged mistake in including clause permitting rescission in the event of a party’s death
EQUITY – equitable remedies – relief against forfeiture – whether unconscientious to exercise right of rescission in the event of the vendor’s death
ESTOPPEL – contract for sale of land – lease to related party of purchaser – conventional basis of dealing – detriment
LAND LAW – conveyancing – contract for sale of land – obligations of vendor and purchaser – purchaser’s obligation to initiate settlement – vendor’s obligation to co-operate
LAND LAW – conveyancing – contract for sale of land – rescission – notice of rescission – notice issued by executrix of the deceased vendor – entitlement of executrix of deceased vendor to issue notice under the contract
WILLS PROBATE AND ADMINISTRATION – testate estates – executors and executrices – status of executor or executrix prior to grant of probate – Probate and Administration Act 1898 (NSW), ss 44 and 61 – validity of notice to rescind contract given by putative executor or executrix before grant of probate – relation back doctrine
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Fussell v Deigan [2018] NSWSC 1419
Case
[2018] NSWSC 1419
Decision Date
CaseChat Overview and Summary
In Fussell v Deigan, the dispute arose from a contract for the sale of land where the vendor, Deigan, sought to rescind the contract following the death of his wife, the other vendor. The purchaser, Fussell, contested the right of the vendor’s executrix to rescind the contract before the grant of probate and argued that the rescission clause was unenforceable. The case was heard in the Supreme Court of New South Wales.
The primary legal issues addressed by the court involved the interpretation of the rescission clause, the validity of an executor’s actions before the grant of probate, the implications of a party’s own breach on the right to rescind, and the availability of equitable relief in light of the vendor’s death. The court was required to determine whether the executrix could validly exercise the rescission right before probate and if the purchaser’s delay in completing the settlement could prevent the vendor from exercising the contractual right to rescind.
The court held that the rescission clause was clear and unambiguous, allowing either party to terminate the contract upon the death or mental incapacity of the other. The court further found that an executrix could validly exercise the right of rescission before the grant of probate, applying the relation back doctrine to uphold the executrix’s notice of rescission. Additionally, the court ruled that the purchaser’s delay in completing the contract did not preclude the vendor from exercising the right to rescind. Finally, the court declined to grant equitable relief, finding no unconscionable conduct in exercising the rescission right.
The court ordered that the contract for the sale of land be rescinded, and both parties be released from their respective obligations under the contract.