Abbas & Anor v M H Affordable Homes Pty Ltd [2020] NSWDC 516

District Court New South Wales

Medium Neutral Citation: Abbas & Anor v M H Affordable Homes Pty Ltd [2020] NSWDC 516 Hearing dates: 24-25 August 2020 and 8 September 2020 Date of orders: 8 September 2020 Decision date: 08 September 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 35-36 Catchwords: PRACTICE AND PROCEDURE – plaintiffs' claim for rescission of contract for purchase of property 'off the plan' – claim depends upon proof that special condition enlivened – condition is whether a party to the contract was mentally ill under Mental Health Act 2007 (NSW) – allegation that first plaintiff was mentally ill in requisite sense – first plaintiff outside jurisdiction at date the proceeding commenced – second plaintiff unable to prosecute claim in absence of first plaintiff – unlikely prospect first plaintiff will return to jurisdiction within next 2 years – second plaintiff in default of direction to serve evidence – whether proceeding should be dismissed for want of despatch – degree of injustice if order for dismissal made – consideration of prospects of success of action Legislation Cited: Civil Procedure Act 2005 (NSW), ss 58, 61 Mental Health Act 2007 (NSW), ss 4, 14 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 14.23 Category: Principal judgment Parties: Mr K Abbas (First Plaintiff) Ms A Hassan (Second Plaintiff) M H Affordable Homes Pty Ltd (Defendant) Representation: Counsel: Plaintiffs appeared in person Mr H Elachkar for the defendant

Solicitors: Birchgrove Legal for the defendant File Number(s): 2019/396337 Publication restriction: Nil