Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299 Hearing dates: Tuesday, 5 February 2019 Decision date: 10 December 2019 Before: Bathurst CJ at [1] Macfarlan JA at [7] White JA at [8] Decision: (1) Appeal allowed. (2) Set aside the orders made on 19 September 2018. (3) Order that the summons be dismissed. (4) Declare that the contract for sale of land between the late James Boyd Lockrey and the respondent dated 10 May 2012 relating to Lot F in Deposited Plan 33553 was rescinded no later than 16 October 2017. (5) Reserve the proceedings for further consideration before the primary judge and grant liberty to apply to the primary judge for any consequential orders that might be required consequent upon the declaration at (4). (6) Order that the respondent pay the appellant's costs of the appeal. Catchwords: SUCCESSION — executors and administrators — rights, powers and duties — executrix exercised deceased's right to rescind contract for sale of land before obtaining probate — consideration of ss 44 and 61 of the Probate and Administration Act 1898 (NSW) — whether rescission valid when given — whether rescission retrospectively validated on obtaining probate

LAND LAW — conveyancing — contract for sale — rescission — construction of clause providing right to rescind — whether right available only to surviving party to contract — whether solicitor named in contract able to exercise right notwithstanding vendor's death