Brian John Harris v Mark Kevin Harris [2013] NSWSC 1010

Supreme Court New South Wales

Medium Neutral Citation: Brian John Harris v Mark Kevin Harris [2013] NSWSC 1010 Hearing dates: 18 & 19 July 2013 Decision date: 30 July 2013 Jurisdiction: Equity Division Before: Kunc J Decision: Statement of claim dismissed Catchwords: CONTRACTS - Unjust contracts - Contracts Review Act - Plaintiff urgently needed funds but determined to keep property in family name - Only prepared to sell to nephew who agreed to purchase for all he could afford and granted seven year lease back to Plaintiff - Both parties understood price was a significant undervalue - Contracts not unjust in the circumstances Legislation Cited: Contracts Review Act 1980 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Darmanin v Cowan [2010] NSWSC 1118 Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Category: Principal judgment Parties: Brian John Harris by his Tutor Ms Rennie (Plaintiff) Mark Kevin Harris (Defendant) Representation: Counsel: Mr P. Batley (Plaintiff) Mr C.H. Cassimatis (Defendant) Solicitors: Legal Aid Commission of NSW (Plaintiff) Mitry Lawyers (Defendant) File Number(s): 2011/330917 Publication restriction: No

Judgment

Summary 1The plaintiff is the uncle of the defendant. Without disrespect I shall refer to them as "Brian" and "Mark" respectively. 2In 2003 Brian needed $20,000 to pay lawyers for his defence against criminal charges. His only asset was a property at Wyong Creek on the New South Wales Central Coast (the "Property") on which he had lived his whole life. He had promised his late mother that he would keep the Property in the family. 3In December 2003 Brian sold the Property to Mark at what both understood at the time to be a significant under value. As part of the sale Mark gave Brian a seven year lease (the "lease") of the Property at a peppercorn rent. 4The lease has come to an end. Mark has obtained orders in the Consumer, Trader and Tenancy Tribunal (the "CTTT") against Brian to recover possession of the Property. In any event Brian, who is now 73, is suffering from a mental illness and lives in aged care accommodation. There is no suggestion he will ever be well enough to live alone again. 5Brian brings these proceedings by his tutor, Ms Rennie, who is his first cousin. He alleges he is entitled to relief under the Contracts Review Act 1980 (NSW) (the "Act") against Mark. By the end of the hearing Brian's counsel, Mr P. Batley, specified that relief as an order increasing the purchase price of the Property and an order for compensation.