Fussell v Deigan [2018] NSWSC 1419

Supreme Court New South Wales

Medium Neutral Citation: Fussell v Deigan [2018] NSWSC 1419 Hearing dates: 7, 8, 9 March 2018; 27 April 2018; further written submissions ending 15 May 2018 Date of orders: 19 September 2018 Decision date: 19 September 2018 Jurisdiction: Equity - Real Property List Before: Parker J Decision: Specific performance granted. Catchwords: CONTRACTS – clause granting "either party" a right to rescind contract in the event of death or mental incapacity – construction

CONTRACTS – right of party to rescind contract on party's death – whether right may be exercised by executor named in party's will before grant of probate – implication

CONTRACTS – termination and rescission – rescission – limitations on rescission – party relying on own breach to rescind contract – whether reliance on delayed completion of contract disentitles vendor from exercising contractual right to rescind

EQUITY – equitable remedies – rectification – alleged mistake in including clause permitting rescission in the event of a party's death

EQUITY – equitable remedies – relief against forfeiture – whether unconscientious to exercise right of rescission in the event of the vendor's death

ESTOPPEL – contract for sale of land – lease to related party of purchaser – conventional basis of dealing – detriment

LAND LAW – conveyancing – contract for sale of land – obligations of vendor and purchaser – purchaser's obligation to initiate settlement – vendor's obligation to co-operate

LAND LAW – conveyancing – contract for sale of land – rescission – notice of rescission – notice issued by executrix of the deceased vendor – entitlement of executrix of deceased vendor to issue notice under the contract