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Mortimer v Ah Sam

Mortimer v Ah Sam

Case [2020] NSWSC 1763 9 December 2020

Unconscionable Conduct

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Supreme Court

New South Wales

Medium Neutral Citation: Mortimer v Ah Sam [2020] NSWSC 1763
Hearing dates: 14, 15, 25 September, 8 October, 26 October, 5 November 2020
Decision date: 09 December 2020
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See [157], [159]-[165]

Catchwords:
EQUITY — Unconscionable conduct — Whether parties’ “Real Estate Sale and Purchase Agreement” should be set aside for unconscionable conduct on the part of the defendant — Where plaintiff unwell and had poor eye sight — Where plaintiff told defendant about his poor health and financial predicament — Where agreement improvident from the plaintiff’s perspective — Where defendant has failed to make payments under the contract — Defendant found to have knowingly taken advantage of plaintiff so as to obtain a place to live rent free — Agreement set aside
EQUITY — Unconscionable conduct — Whether the plaintiff should be required to compensate defendant for time and money spent improving the plaintiff’s property where parties’ “Real Estate Sale and Purchase Agreement” set aside — Where no consent or acquiescence on the part of the plaintiff — Where defendant found to have contrived the claim for money and time spent in order to create a set off that would enable him to avoid payment of the purchase price — Where no evidence provided to support assertions as to time and money spent
CONTRACTS — Express terms — Implied terms — Formation — Whether parties’ “Real Estate Sale and Purchase Agreement” contained an express or implied term entitling the defendant to be reimbursed for monies spent on the subject property, or whether the parties made an oral agreement to that effect
CONTRACTS — Breach of contract — Whether the defendant breached the parties’ “Real Estate Sale and Purchase Agreement” — Where defendant avoided paying monies due under the agreement on the basis that he was owed money for work done on the property
LAND — Judgment for possession — Writ of possession — Where parties’ “Real Estate Sale and Purchase Agreement” set aside for unconscionable conduct on the part of the defendant

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 6.8
Civil Procedure Act 2005 (NSW) ss 92, 104

Cases Cited:
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Australian Hardwoods Pty Ltd v Commissioner for Railways [1961] 1 All ER 737
Blomley v Ryan (1956) 99 CLR 362
Brand v Chris Building Co Pty Ltd [1957] VR 625
Bridgwater v Leahy (1998) 194 CLR 457
Cherry v Steele-Park [2017] NSWCA 295
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Dasreef v Hawchar (2011) 243 CLR 588
Electricity Generation Corporation v Woodside Energy Pty Ltd (2014) 251 CLR 640
Hamilton v Geraghty (1901) 1 SR (NSW) Eq 81
Maguirev Makaronis (1997) 188 CLR 449
Marshall v Snowy River Shire Council (1994) 7 BPR 14,447 CA
Mehmet v Benson (1965)…

Grounds of appeal

[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.

Continue reading Mortimer v Ah Sam

Details

AGLC: Mortimer v Ah Sam [2020] NSWSC 1763
Case: [2020] NSWSC 1763
Decision Date: 09 December 2020

CaseChat Overview and Summary

Mortimer v Ah Sam involved a dispute between Mortimer, the plaintiff, and Ah Sam, the defendant, concerning a Real Estate Sale and Purchase Agreement. Mortimer, who was unwell and had poor eyesight, entered into the agreement with Ah Sam, who was aware of Mortimer's health and financial difficulties. The central issue was whether the agreement should be set aside due to unconscionable conduct by Ah Sam, who had failed to make payments under the contract and had knowingly taken advantage of Mortimer's situation. Additionally, the court had to determine whether Mortimer should compensate Ah Sam for improvements made to the property, and if there were any express or implied terms entitling Ah Sam to reimbursement. The court also examined whether Ah Sam breached the agreement by avoiding payment based on alleged work done on the property, and whether Ah Sam was entitled to a judgment for possession or a writ of possession.

The court held that Ah Sam's conduct was unconscionable as he knowingly took advantage of Mortimer's vulnerable position to obtain a place to live rent-free. The agreement was set aside due to the unconscionability of Ah Sam's actions. The court found that Mortimer was not required to compensate Ah Sam for improvements made to the property, as there was no consent or acquiescence on Mortimer's part, and Ah Sam's claim for reimbursement was contrived to create a set-off to avoid payment of the purchase price. The court further held that there was no evidence to support Ah Sam's assertions regarding the time and money spent on the property. The court also determined that Ah Sam breached the agreement by avoiding payment based on alleged work done on the property.

In conclusion, the court set aside the Real Estate Sale and Purchase Agreement due to Ah Sam's unconscionable conduct. Mortimer was not required to compensate Ah Sam for any improvements made to the property, and Ah Sam was not entitled to a judgment for possession or a writ of possession. The court found that Ah Sam breached the agreement by avoiding payment based on alleged work done on the property, and that there was no evidence to support his claims for reimbursement.

Orders