Mortimer v Ah Sam [2020] NSWSC 1763

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 Maguire v Makaronis (1997) 188 CLR 449 Marshall v Snowy River Shire Council (1994) 7 BPR 14,447 CA Mehmet v Benson (1965) 113 CLR 295 Morris v Morris (1982) 1 NSWLR 61 Ramsden v Dyson (1866) LR 1 HL 129 Shevill v Builder's Licensing Board (1982) 149 CLR 620 Thorne v Kennedy (2017) 263 CLR 85 Watson v Foxman (1995) 49 NSWLR 315 Westfield Management v AMP Capital Property Nominees (2012) 247 CLR 129 World Best Holdings Limited v Sarker [2010] NSWCA 24 Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, LexisNexis Butterworths, 2015) Category: Principal judgment Parties: Christopher John Mortimer (plaintiff) Julius Iulai Ah Sam (defendant) Representation: Counsel: K Tang (plaintiff) Self-represented (defendant)