Ah Sam v Mortimer [2021] NSWCA 327

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ah Sam v Mortimer [2021] NSWCA 327 Hearing dates: 17 August 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Before: Basten JA at [1]; Payne JA at [2]; Brereton JA at [3]. Decision: Appeal dismissed with costs. Catchwords: CONTRACTS – Unconscionable conduct – Special disadvantage – Contract for sale of 50% of real property – Advertisement by respondent for $300,000 – One page agreement for $250,000 presented by appellant – Other terms of agreement improvident – Respondent suffering from very poor eyesight – Appellant aware or ought to have been aware of such facts – Appellant unable to surmount high bar for overturning demeanour-based findings that respondent could not read agreement and was unaware of different price – Special disadvantage established – Agreement void – Appeal dismissed CONTRACTS – Remedies – Specific performance – Appellant unable to demonstrate that ready, willing, and able to complete – No entitlement to specific performance in alternative that agreement not void EQUITY – Equitable remedies – Equitable compensation – Order setting aside agreement for unconscionability conditional upon party obtaining relief doing equity – Insufficient evidence of appellant's expenditure on property or of enhancement to property's value – Any entitlement offset by appellant's rent-free enjoyment of property despite void agreement – No compensation payable APPEALS – Procedural fairness – Bias or apprehension of bias – Interventions by primary judge during appellant's questioning of witnesses – Rejection of evidence and strong adverse findings – Allegations that primary judge lied – Late grant of leave to respondent to amend pleadings – No bias demonstrated CIVIL PROCEDURE – Hearings – Adjournment – Appellant received material from respondent shortly before taking of evidence – Evidence had been served long before – Submissions did not commence for another three weeks – Ample time to respond – No injustice identified CIVIL PROCEDURE – Hearings – Procedural Fairness – Use of audio-visual link – Technology imperfect but no resulting injustice identified CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment – Primary judge suggested that respondent amend originating process to explicitly plead unconscionability – Case always conducted on basis of unconscionability – No injustice identified Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58, 64 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Babic v Williams (1974) 5 BPR 11,242 Beaton v McDivitt (1985) 13 NSWLR 134; 3 BPR 9,576 Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Brien v Dwyer (1978) 141 CLR 378; [1978] HCA 50 Charisteas v Charisteas (2021) 95 ALJR 824; [2021] HCA 29 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Knaggs v Director of Public Prosecutions (2007) 170 A Crim R 366; [2007] NSWCA 83 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 Mortimer v Ah Sam [2020] NSWSC 1763 Muriniti v Lawcover Insurance Pty Ltd (No 2) [2018] NSWCA 311 Myton Ltd v Schwab-Morris [1974] 1 All ER 326; (1974) 28 P & CR 1 Payne v City Syndicate Management Pty Ltd (Supreme Court (NSW), Holland J, 3 May 1973, unrep) Prouten v Chapman [2021] NSWCA 207 Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28 R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 89 Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 Tildesley v Harper (1878) 10 Ch D 393 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Texts Cited: M Cope, Duress, Undue Influence & Unconscientious Bargains (1985, Law Book Co) Category: Principal judgment Parties: Julius Iulai Ah Sam (Appellant) Christopher John Mortimer (Respondent) Representation: Counsel: Self-represented (Applicant) K Tang (Respondent)