Brennan v O'Meara [2009] NSWSC 1374

New South Wales Supreme Court

CITATION : Brennan v O'Meara [2009] NSWSC 1374 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 7 & 8 December 2009

JUDGMENT DATE : 11 December 2009

JUDGMENT OF : Davies J

DECISION : (1) I declare that the Termination Notice dated 30 January 2009 in respect of the sale of the property situated at and known as 43 Carrs Island Road, Carrs Island being more particularly described as all that land in certificate of title folio identifiers 228/751371, 229/751371, 230/751371 and 231/751371 wherein the Plaintiff was the vendor and the Defendant was the purchaser was effective. (2) I declare that the Notice of Rescission dated 30 January 2009 issued by the Defendant to the Plaintiff in respect of the same sale of land was invalid and of no effect. (3) The cross-claim by the Defendant is dismissed. (4) The Defendant is to pay the costs of the proceedings.

CATCHWORDS : CONVEYANCING - the contract and conditions of sale - other particular conditions - right to rescind if one party dies or becomes mentally ill - meaning of "become mentally ill" - purpose of clause - purchaser with long history of mental illness - mental illness known to purchaser but not disclosed at the date of contract - mental illness not impairing capacity - purported rescission by purchaser invalid - penalty - whether reduction in occupation fee if no default under contract was a penalty.

Guardianship Act 1987 LEGISLATION CITED : Mental Health Act 1990 Mental Health Act 2007 Protected Estates Act 1983

CATEGORY : Principal judgment

Karfoal Pty Ltd v Lorence [2002] NSWSC 204 ' Makita v Sprowles (2001) 52 NSWLR 705 CASES CITED : Molton v Camroux (1848) 2 Ex 487; 18 LJ Rep (Exch) 68, (affirmed 356) O'Day v All States Leasing System (WA) Pty Ltd (1983) 152 CLR 359 Strode v Parker (1694) 23 ER 804