Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited [2009] NSWCA 186

Reported Decision: 75 NSWLR 42

New South Wales Court of Appeal

CITATION: Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited [2009] NSWCA 186 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 March, 2009, 15 May 2009

JUDGMENT DATE: 8 July 2009

JUDGMENT OF: Allsop P at 1; Young JA at 1; Sackville AJA at 134

1. Appeal allowed. 2. The orders of the Court of 29 February 2008 be set aside and in lieu thereof: (a) judgment for the plaintiff in the sum of $24,857 plus interest; DECISION: (b) the cross-claim be dismissed; and (c) the plaintiff pay the defendant's costs of the proceedings, including of the cross-claim. 3. Cross-appeal dismissed. 4. Respondent to the appeal and cross-appellant on the cross-appeal pay the appellant's and cross-respondent's costs of the appeal and cross-appeal. 5. Leave to file, within 30 days, written submissions as to the calculation of interest referred to in 2(a) above.

CATCHWORDS: CONTRACTS – general principles – non est factum – party seeking to set aside contract with intellectual disability – no necessary inconsistency in the pleas of non est factum and incapacity – operation of the plea of non est factum concerns the true consent of the signer – no signature if the relevant mental incapacity prevents any understanding at all of the document - CONTRACTS – general principles – non est factum – requirement of no negligence by the signer relying on the plea – relevant standard of enquiry - lack of reasonableness of a person in the position of the signer - CONTRACTS – Contracts Review Act 1980 (NSW) – statute does not apply when no contract formed in law – statute does not apply when contract found void on basis of plea of non est factum - CONTRACTS – Contracts Review Act 1980 (NSW) – s 7 relief – orders in favour of party with a disability in circumstances where other party did not know of disability – relief can be granted – order would be made to vary loan and mortgage if statute was held to apply - CONTRACTS – Contracts Review Act 1980 (NSW) – s 6(2) – "carried on by or proposed to be carried on by" –meaning - matter of substance not form - WORDS AND PHRASES – "carried on by or proposed to be carried on by" - RESTITUTION - mistake: restitution arising from a plaintiff's mistaken actions - recovery of money paid under mistake – recovery of funds paid under a loan and mortgage later held to be void - right to recovery prima face enlivened – injustice of the retention of the money or benefit – receipt and benefit matter of substance not form – whether funds received and retained – conduct of lender relevant in circumstances of this case – non est factum and restitution - conformity of legal principle – party not liable in restitution to repay funds where loan contract found void and party did not in substance receive benefit from the funds