Fussell v Deigan - [2018] NSWSC 1419 - NSWSC 2018 case summary — Zoe

NSWNSWSC

Fussell v Deigan

[2018] NSWSC 1419

Supreme Court of NSW|2018-03-09|Before: Parker J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-03-09

Before

Parker J

Catchwords

CONTRACTS - clause granting "either party" a right to rescind contract in the event of death or mental incapacity - construction

Source

Original judgment source is linked above.

Catchwords

CONTRACTS - clause granting "either party" a right to rescind contract in the event of death or mental incapacity - construction

Judgment (33 paragraphs)

[1]

Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223; [1976] UKPCHCA 1 Coppa v Barnett [2012] NSWSC 490 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Darrington v Caldbeck (1990) 20 NSWLR 212 Dibbins v Dibbins [1896] 2 Ch 348 Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45 Douglas v Forrest (1828) 4 Bing 686; 130 ER 933 Eggins v Robinson [2000] NSWCA 61 Ell v Ell (2015) 14 ASTLR 32 [2015] NSWCA 38 Ex parte Callan; re Smith [1968] 1 NSWR 443 Ex parte Public Trustee; Re Birch (1951) 51 SR (NSW) 345 Foran v Wight (1989) 168 CLR 385; [1989] HCA 51 Foster v Bates (1843) 12 M & W 226; 152 ER 1180 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Fred Long & Son Limited v Burgess [1950] 1 KB 115 GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 Harwood and Bincks v Hilliard (1677) 2 Mod 268; 86 ER 1065 Hewitt v Gardner (2009) 3 ASTLR 407; [2009] NSWSC 705 Holland v King (1848) 6 CB 727; 136 ER 1433 Hyde v Skinner (1723) 2 P Wms 196; 24 ER 697 Karfoal Pty Ltd v Lorence (2002) 11 BPR 20,129; [2002] NSWSC 284 Kelsey v Kelsey (1922) 127 LT 86; 91 LJ Ch 382 Kennewell v Dye [1949] 1 Ch 517 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57; [1974] HCA 49 Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 Marshall v DG Sundin & Co Ltd (1989) 16 NSWLR 463 Mehmet v Benson (1965) 113 CLR 295; [1965] HCA 18 Mills v Anderson [1984] QB 704 Newton v Metropolitan Railway Co (1861) 1 Dr & Sm 583; 62 ER 501 Nichol v Pettycrew (1969) 7 DLR (3d) 103 Pratt v Hawkins No 2 (1991) NSW Conv R 55-592 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; [1985] HCA 14 Re Cousins; Alexander v Cross (1885) 30 Ch D 203 Re Stevens [1897] 1 Ch 422 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 Tarn v The Commercial Banking Company of Sydney (1884) 12 QBD 294 Tea Trade Properties Ltd v CIN Properties Ltd [1990] 1 EGLR 155 Teele v Federal Commissioner of Taxation (1940) 63 CLR 201; [1940] HCA 3 Tharpe v Stallwood (1843) 5 Man & G 760; 134 ER 766 The Daily Pty Ltd v White (1946) 63 WN (NSW) 262 Waterman v Gerling Australia Insurance Co Pty Ltd (2005) 194 FLR 419; [2005] NSWSC 1066 Webb v Adkins (1854) 14 CB 401; 139 ER 165 Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1; [2011] HCA 45 Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (in liq) (2013) 251 CLR 592; [2013] HCA 51 Texts Cited: David Hughes Parry and John Cherry, Williams on Executors (Stevens & Sons, 12th ed, 1930) G L Certoma, The Law of Succession (Lawbook Co, 4th ed, 2010) Viscount Simonds (eds), Halsbury's Laws of England (Butterworths, 3rd ed, 1964) Category: Principal judgment Parties: Bernard James Fussell (Plaintiff) Carolyn Patricia Deigan (Defendant) Representation: Counsel: N Cotman SC/J Kennedy (Plaintiff) DL Cook SC/A Kauffman (Defendant)

[3]

Judgment

These proceedings concern a contract for the sale of land at Grand Avenue, Camellia, in Sydney, owned by the late James Boyd Lockrey. The plaintiff, Bernard James Fussell, is the purchaser under that contract.
The defendant, Carolyn Patricia Deigan, is executrix of Mr Lockrey's last will, which was made in October 2013. Ms Deigan is a solicitor. She practises as a director of a solicitor corporation which trades under the name "CLS Legal". CLS Legal acted for Mr Lockrey on the contract.
The sole beneficiary of Mr Lockrey's estate is his widow, Mei (also known as "Lilly") Lockrey. Mrs Lockrey is of Chinese extraction. She married Mr Lockrey in 2003.
Mr Lockrey and Mr Fussell entered into the contract in May 2012. The contract allowed a period of five years (that is, until May 2017) for completion. At the same time as the contract was entered into, Mr Lockrey granted a lease to Blue Star Trading Corporation Pty Limited ("BSTC"), a company belonging to Mr Fussell. The lease was for a period of six years, ending in May 2018, at a rent of $100,000 per annum.
The property is in an industrial area and a disused factory building stands on it. At the time the contract was entered into, both Mr Lockrey and Mrs Lockrey were living there, but in different places. Mr Lockrey was living in an upstairs part of the factory building, above a garage area. Mrs Lockrey was living in a free-standing demountable building located on the property.
The purchase price under the contract was $1.7 million. A deposit of $50,000 was paid in May 2012 and released to Mr Lockrey pursuant to the terms of the contract. The contract provided that on completion Mr Fussell would grant a life estate to Mr Lockrey over that part of the factory building where he was living. It also gave Mr Fussell the option of purchasing the demountable building for an additional $80,000. If Mr Fussell chose not to purchase the demountable building, he was required to grant a licence of one year's duration for its continued occupation by one or other or both of Mr Lockrey and Mrs Lockrey.
The contract provided for completion to take place by 10 May 2017. That day passed without either party having taken any steps to arrange for settlement. Two days later, on 12 May, Mr Lockrey died.
The contract contained a special condition (cl 33.2) which, Ms Deigan contends, entitled Mr Lockrey's legal personal representative to rescind the contract in the event of Mr Lockrey's death. On 18 May Ms Deigan served a notice purporting to rescind under that special condition. At that time, probate had not been granted. On 16 October, after the grant of probate, Ms Deigan served a further purported notice of rescission.
The proceedings were commenced on 17 October 2017, the day after the second purported notice of rescission. Mr Fussell as plaintiff seeks an order for specific performance to compel Ms Deigan as executrix to complete the contract on behalf of Mr Lockrey's estate.
The hearing took place in March 2018, followed by supplementary written submissions. The lease was due to expire in May. Shortly before the lease expired, the parties agreed to a regime for it to be extended up until the delivery of judgment, and I made consent orders reflecting this agreement. Some further written submissions were then made.

[4]

Issues for decision

Mr Fussell's first contention is that cl 33.2, on its true construction, only permitted the purchaser to rescind in the event of the vendor's death. Alternatively, Mr Fussell contends that if the clause did permit rescission by the vendor, that was a mistake and the contract should be rectified so as to deprive the vendor of any right to rescission in such circumstances.
Next, Mr Fussell contends that, even if the contract provided for a right of rescission, there was no entitlement to issue the purported notice of rescission of 18 May. This contention is put on four grounds. First, there was an estoppel against rescinding. Second, rescission would involve taking advantage of a wrong on Mr Lockrey's own part. Third, by 18 May Mr Fussell already had a vested entitlement to obtain specific performance of the contract. And fourth, exercise of the right of rescission would involve a forfeiture against which Mr Fussell was entitled to relief. It was also contended that exercising the right of rescission would be unconscientious, but I do not understand this contention to add anything of substance to the four grounds to which I have referred.
Next, Mr Fussell contends that, even if there was a right to rescind, the May notice of rescission was not a valid exercise of that right. Mr Fussell argues that the notice issued by Ms Deigan was of no effect because she had not then obtained probate of Mr Fussell's will, and did not have authority to act on behalf of his estate.
Mr Fussell accepts that Ms Deigan did have authority to act on behalf of the estate when she issued the second purported notice of rescission on 16 October. But he contends that, for the same reasons as he advances in connection with the May notice, any relevant entitlement had been lost by 16 October. He also seeks to contend that the 16 October notice was issued too late to be contractually effective in any event.
Apart from relying on the rescission of the contract, Ms Deigan's defence also contends that specific performance should not be granted because Mr Fussell was not ready, willing and able to complete the contract. The contention was that Mr Fussell had failed to demonstrate that he had funds available to complete the contract.
This issue (including the question as to whether such inability had to be determined as at the original date for completion of the contract, or some later date or dates) was the subject of written submissions from the parties prior to the hearing, and evidence at the hearing. But in final submissions counsel for Ms Deigan accepted that the Court should take the pragmatic course, if otherwise satisfied that specific performance was available, of ordering specific performance and seeing whether Mr Fussell in fact proved able to complete (as Windeyer J did in Mehmet v Benson (1965) 113 CLR 295; [1965] HCA 18 at 314-315). It is therefore unnecessary for the Court to decide whether Mr Fussell was, or is, unable to complete.

[6]

Sale of property

The contract between Mr Lockrey and Mr Fussell was a Law Society of NSW standard form "Contract for the Sale of Land - 2005 edition" containing twenty-nine clauses. The contract also contained twenty-two special conditions numbered from 30 to 51.
Clause 37 of the special conditions was headed 'Completion'. It replaced clause 15 of the standard form. Clause 37.2 provided as follows: 37.2 The vendor and purchaser must complete this contract by 3:00pm on the date shown as the completion date ('Completion Date') shown on the front page of the contract.
The front page of the contract stipulated the completion date as 'Five (5) years after the contract date'. The front page stated the contract date as 10 May 2012. This fixed the completion date at 10 May 2017.
Clauses 37.3 and 37.4 provided: 37.3 If completion does not occur on or before the Completion [sic] the vendor may serve the purchaser with a notice: 37.3.1 requiring the purchaser to complete the contract not less than 14 days after the date of service of the notice; and 37.3.2 making time of the essence. 37.4 The parties acknowledge that for the purposes of clause 37.3, the period of 14 days is sufficient time to complete this contract.
Clause 38 of the special conditions provided: 38. If the purchaser fails to complete by the completion date (other than due to a default by the vendor), the purchaser shall pay to the vendor: 38.1 interest on the balance of the price outstanding at the rate of 10% from the completion date until completion is effected; and 38.2 The sum of two hundred and fifty dollars ($250.00) to cover legal costs and other expenses incurred as the consequence of the delay, as a genuine pre-estimate of those additional costs and expenses, this amount to be paid on completion. This clause shall not affect any other right of the vendor.
Clause 19 of the standard form governed contractual rights to rescind the contract. It provided: 19 Rescission of contract 19.1 If this contract expressly gives a party a right to rescind, the party can exercise that right - 19.1.1 only by serving a notice before completion; and 19.1.2 in spite of any making of a claim or requisition, any attempt to satisfy a claim or requisition, any arbitration, litigation, mediation or negotiation or any giving or taking of possession. …
Clause 1 of the standard form contained definitions for various defined terms appearing elsewhere in italics. Of the defined terms used in cl 19, "party" was defined as meaning "each of the vendor and the purchaser" and "serve" was defined as meaning "serve in writing on the other party". Clause 20.6 relevantly provided: 20 Miscellaneous … 20.6 A document under or relating to this contract is - ... 20.6.2 served if it is served by the party or the party's solicitor; 20.6.3 served if it is served on the party's solicitor, even if the party has died or any of them has died; ...
The term "solicitor" was defined as meaning "in relation to a party, the party's solicitor or licensed conveyancer named in this contract or in a notice served by the party".
Clause 21.1 of the standard form provided: 20 Time limits in these provisions 21.1 If the time for something to be done or to happen is not stated in these provisions, it is a reasonable time. …
The critical provision, cl 33 of the special conditions, provided: Death or insolvency etc. 33. Without in any manner negating limiting or restricting the rights or remedies which would have been available to the parties at law or in equity had this special condition not been included, should either party prior to completion: 33.1 being a natural person be declared bankrupt, then 33.1.1 in the case of the vendor, the purchaser may rescind this contract by notice in writing forwarded to the solicitor for the vendor and this contract shall be at an end and the provisions of clause 19 shall apply; or 33.1.2 in the case of the purchaser, the purchaser shall be deemed not to have complied with this contract in an essential respect; 33.2 die or become mentally ill, then in the case of the vendor or the purchaser either party may rescind this contract by notice in writing forwarded to the solicitor for the other party and this contract shall be at an end and the provisions of clause 19 shall apply; 33.3 being a company, resolve to go into liquidation or have a petition for its winding up presented or entered into any scheme of arrangement with its creditors under the Corporations Act 2001 or should any provisional liquidator, liquidator, receiver and manager, receiver, controller, administrator or official manager be appointed in respect of either party or any asset of either party then: 33.3.1 in the case of the vendor, the purchaser may rescind this contract by notice in writing forwarded to the solicitor for the vendor and this contract shall be at an end and the provisions of clause 19 will apply; or 33.3.2 in the case of the purchaser, the purchaser shall be deemed not to have complied with this contract in an essential respect.
Clause 48 of the special conditions relevantly provided: Inclusions and Exclusions 48.1 The purchaser acknowledges that the property contains a number of structures and a number of temporary structures, including but not limited to the following: a separate demountable home, which is connected to all services ("Demountable Home"); structural steel frameworks ("Structural Steel"); roofing materials ("Roofing Materials"); shipping containers including the contents of any of the shipping containers if any ("Shipping Containers"); large quantities of miscellaneous cuts of timber ("Timber"); an unspecified number of forklift pallets ("Pallets"); concrete blocks ("Concrete Blocks"); steel machinery ("Steel Machinery"); and miscellaneous items relating to the previous building hoarding business operated by the vendor ("Miscellaneous Items"). 48.2 The purchaser acknowledges that the sale price does not include the Demountable Home, which the purchaser may purchase for an additional amount of eighty thousand dollars ($80,000.00) plus GST. If the purchaser decides to purchase the Demountable Home he shall advise the vendor's solicitor in writing of this fact no later than five (5) business days before completion. In which case, the purchase price shall be increased by the amount of $80,000.00 plus GST on completion. In the event that the purchaser does not purchase the Demountable Home, he agrees that it grants to the vendor and/or his wife Mei Lockrey a licence to occupy the Demountable Home after completion for a period of not less than twelve (12) months. After the period of twelve (12) months the purchaser may give the vendor and/or Mei Lockrey a notice in writing providing not less than three (3) months notice for the vendor and/or Mei Lockrey to vacate the Demountable Home. At any time during the occupancy or an expiration of a notice to vacate that is issued in accordance with this clause the vendor shall have the right to remove the Demountable Home from the property. Should the Demountable Home not be removed within that time it will become the property of the purchaser. 48.3 Also excluded from the sale are the Shipping Containers. The purchaser agrees that this item may remain on the property for a period not exceeding twelve (12) months from the date of completion during which time the vendor shall have access to the Property and the right to have the items stored on the property to be sold or removed at will. 48.4 Included in the sale are the Concrete Blocks, Structural Steel, Steel Machinery, Roofing Materials, Timber, Pallets and Miscellaneous Items. Further, in the event that the vendor fails to remove any of the items referred to in clause 48.3 before the date, which is twelve (12) months after completion then the parties agree that these items become the property of the purchaser. …

[7]

Life estate

Clause 49 of the special conditions provided: Life Estate 49.1 The purchaser has agreed that in consideration of the vendor entering into this contract that he will on completion grant a life estate ("Life Estate") to the vendor for the home built on top of the six garages on the property in the terms set out in the deed of life estate, a copy which is annexed and marked "A". 49.2 After the date of this contract the vendor's solicitor shall provide the purchaser's solicitor with the deed creating the Life Estate completed as at the date of this contract in duplicate to be signed by the purchaser and returned to the vendor's solicitor to be signed by the vendor and held in escrow pending stamping of that document and completion. 49.3 Prior to completion the vendor will if he deems necessary obtain at his expense a survey plan of the home built on the property. 49.4 The vendor prior to completion shall obtain a valuation of the Life Estate. 49.5 The purchaser's solicitor shall prepare a transfer substantially in the form annexed and marked "B" and the vendor and purchaser shall ensure that a joint application is made to the Office of State Revenue for the purposes of stamping this contract and marking the transfer, which application will include the valuation referred to in clause 42.5 [scil 42.4]. The purchaser shall pay the stamp duty payable in respect of the purchase price and the vendor shall pay the stamp duty in relation to the life estate.
Clause 1 of the annexed Deed of Life Estate defined the "Property" as the whole of the Camellia land and the "House" as: …the house constructed on top of the six garages on the Property as at the date of the Contract together with all the inclusions contained in the House.
Other relevant clauses of the annexed Deed of Life Estate were: 2.1 Fussell agrees that in consideration of Lockrey entering into the Contract and for no further consideration then [sic] the Purchase Price grants to Lockrey a life estate in the House. … 2.5 Lockrey shall be responsible for maintaining the House during the life tenancy to the condition at the time of the transfer of the Property to Fussell pursuant to the Contract, fair wear and tear accepted. … 4.1 Subject to clause 6, the life estate may only be terminated by Fussell on the death of Lockrey. 4.2 In the event of the death of Lockrey, Fussell agrees that if Mei Lockrey is the legal wife of Lockrey, as at the time of his death and has been residing in the House with Lockrey, she has twelve (12) months from the date of Lockrey's death to vacate the House and remove any personal chattels located in the House that are the property of Lockrey. … 6.1 Nothing in this deed shall prevent Fussell selling the Property subject to the life estate of Lockrey. However, in the event that Fussell was desires [sic] of selling the asset to a third party and determining the life estate on completion of that sale, Fussell agrees to negotiate in good faith with Lockrey to a value of Lockrey's remaining interest in the life tenancy to be paid to Lockrey on the completion of any such sale, provided that a decision to do so is in Lockrey's absolute discretion and can be withheld without any reason.
Clause 4.1 of the standard conditions dealt with the service of the transfer prior to completion. The special conditions modified the standard form so that it provided: 4.1 Normally, the purchaser must serve the form of transfer at least 14 days before the completion date 3 business days after the date the vendor serves notice of registration of the plan.
The contract did not identify what "plan" this clause was referring to. Clause 49.3 referred to a survey plan for the "House" but this was only to be obtained at the vendor's discretion and the contract contained no reference to registration of such plan. The evidence in the case did not touch on the question.

[8]

Lease to BSTC

The lease was executed on 10 May 2012, the same day as the contract for sale. The term of the lease was five years, commencing on 10 May 2012 and ending 9 May 2017. The leased area was specified as the whole of the Camellia land, excluding the upstairs area occupied by Mr Lockrey (that is, the "House"), the six garages under the "House", and the demountable building.
The lease provided in the usual form for the payment of rent in monthly instalments (cl 1.1). The payment of rent was subject to review (cll 1.2 and 1.3). The lease could be terminated for the failure to pay rent or other default (cl 12.1). There was also provision for the payment of interest on overdue rent (cl 12.6).
Clause 4.1 set out the permitted uses of the premises: 4.1 The Lessee must not use the premises (including any part of the premises) or permit them to be used for any purposes other than as premises for carrying on the business or use set out in Item 4 of the Reference Schedule.
Item 4 in the Reference Schedule stated "Storage of Garden materials and filling".
Clauses 8.1 and 8.2 provided: 8.1 The Lessee must not without the prior written consent of the Lessor (which consent shall not be unreasonably withheld) make any structural alterations or additions in or to the premises or any part of the premises. 8.2 The Lessee must not without the prior written consent of the Lessor (which consent shall not be unreasonably withheld) install any water, gas or electrical fixtures, equipment or appliances or any apparatus for illuminating, air-conditioning, heating, cooling or ventilating the premises nor shall the Lessee mark paint or drill or in any way deface or damage any walls ceilings partitions, floors or other parts of the premises.
Clause 33 provided: The parties acknowledge that part of the property is occupied by Mr. John Lee ("Tenant") on an informal basis. The Lessee agrees to enter this Lease subject to whatever basis the Tenant occupies the property and to make their own arrangements with the Tenant in respect of the outgoing tenancy or the vacation of the property by the Tenant on terms to be agreed between the Lessee and the Tenant. If the Tenant vacates and terminates the informal tenancy or the Lessee requests the Tenant to vacate and terminate the informal tenancy, the Lessee agrees to pay to the Lessor the sum of $2,000.00 each month in consideration for the Lessee occupying the part of the property previously occupied by the tenant.
A number of the special conditions in the contract referred to the lease. Clause 51 relevantly provided: Lease 51.1 The property is sold subject to the lease ("lease") between the vendor and Blue Star Trading Corporation Pty Limited ACN 156 585 376 (lessee) a copy of which is attached. The benefit of the lease will be given to the purchaser on completion. … 51.7 If the lessee of licensee under the lease are as at the date of completion in arrears in payment of rental or other moneys payable udner the lease in respect of the calendar month current as at the date of completion ("current month's rentals") then the relevant adjustment (calculated in accordance with clause 14 of the conditions of sale) shall upon completion be made by the purchaser in favour of the vendor and right to recover any arrears in the current month's rentals shall pass to the purchase [sic] upon completion. … 51.9 The purchaser is an associated entity of the lessee and takes the obligations of the lease in the event that the lessee vacates the property or negates the lease. 51.10 The parties acknowledge that part of the property is occupied by Mr. John Lee ("Tenant") on an informal basis. The purchaser agrees to complete the contract and take title to the property subject to whatever basis the Tenant occupies the property and to make their own arrangements with the Tenant in respect of the ongoing tenancy or the vacation of the property by the Tenant on terms to be agreed between the purchaser and the Tenant.
Clause 37.7 of the special conditions (other parts of the clause have been quoted at [21]-[23] above) provided: 37.7 The purchaser acknowledges that Blue Star Trading Corporation Pty Limited ACN 156 585 376, the lessee is an associated entity of the purchaser and the purchaser agrees and acknowledges that Completion is subject to and conditional upon all monies payable under the lease between the vendor and the lessee being paid up to and including the date of completion provided that if the moneys are not paid up to completion the outstanding moneys paid on settlement. In the event that there is any dispute as to whether any rent is outstanding under the lease on completion it will be the obligation of the lessee and/or purchaser to prove the amount of the rent outstanding and paid. The parties agree that in the event that the lease is terminated then this contract will also be terminated.

[10]

Previous dealings by Mr Lockrey

In October 2009 Mr Lockrey entered into a contract to sell the Camellia property to a couple named Calleija. The contract price was $2.825 million with a ten per cent deposit and completion to take place within twelve months. Mr Lockrey was introduced to the buyer by a real estate agent, Phillip Mills of Mills Industrial Brokers, who had been retained by Mr Lockrey to sell the property. Mr Mills introduced Mr Lockrey to Ms Deigan, who prepared the contract. At the time, Ms Deigan was working as an employed solicitor for a firm known as Barends Black.
In January 2010, Barends Black was dissolved and Ms Deigan founded a new firm, CLS Legal, with another solicitor, John Tomko. CLS Legal was the business name of a company called Commercial Legal Solutions Pty Ltd of which Ms Deigan and Mr Tomko were directors. CLS Legal thereafter acted for Mr Lockrey. In 2015, the business name was transferred to another company also called Commercial Legal Solutions Pty Ltd (the former company was renamed).
In March 2010 the Calleijas decided not to proceed with the purchase. Mr Lockrey did not seek to enforce the contract.
In June 2010 Mr Lockrey instructed Ms Deigan that he had found another buyer for the property. Rita Boustani, an employed solicitor with CLS Legal, was asked by Ms Deigan to assist with drafting and issuing the contract. A draft contract for sale of the property to the proposed purchaser, Xinyu Wang, was issued in early July 2010 to Mr Wang's solicitors. The price was $2.31 million with a ten per cent deposit. The date set for completion was specified as "the 42nd day after the contract date".
At the end of July 2010 Ms Deigan received a telephone call from a solicitor acting for Mrs Lockrey. The solicitor said he had instructions to lodge a caveat on the property. According to Mrs Lockrey, she gave these instructions because she wished to ensure that any sale of the property which took place took account of her interests.
The contract with Mr Wang provided for a life estate to be granted back to Mr Lockrey. This became a sticking point in the negotiations. The life estate was said to be an obstacle to the grant of finance and the purchaser wished Mr Lockrey to take a lease instead. In August 2010 Mr Lockrey instructed Ms Boustani that he would hold on to the property and wait to see if he could get a better price. On Mr Lockrey's instructions, Ms Boustani telephoned Mr Wang's solicitor and told him that without a life estate Mr Lockrey was not interested in selling. Mr Lockrey also instructed Ms Deigan not to do anything about Mrs Lockrey's caveat (which had by now been registered) for the moment.
In December 2010 Mr Lockrey was hospitalised. He gave urgent instructions to Ms Deigan to remake his will. Ms Deigan prepared a will for him, which provided for his estate to be distributed between his two daughters and Mrs Lockrey in three equal shares.
In February 2011, Mr Lockrey told Ms Deigan that Mrs Lockrey had left him and gone home to China. He gave instructions for the preparation of a new will which left his estate to his two daughters. Ms Deigan prepared a new will accordingly. On Mr Lockrey's instructions, Ms Deigan also issued a lapsing notice against the caveat which had been lodged by Mrs Lockrey. The caveat subsequently lapsed pursuant to this notice.
Mrs Lockrey later returned to live at the Camellia property. The evidence does not identify exactly when this occurred. But Mr Fussell's evidence was that Mrs Lockrey was living at the property from when he first got to know Mr Lockrey in 2011 onwards.
In March 2011 Mr Mills advised Ms Deigan and Ms Boustani that he had re-negotiated the sale of the land from Mr Lockrey to the Calleijas. The price was to be $2 million plus GST if applicable with a ten per cent deposit and up to twenty-four months for settlement. In the meantime, the purchaser was to go into occupation and pay rent at $90,000 per annum plus GST plus any State land tax if applicable. But in April 2011 Ms Boustani, on Mr Lockrey's instructions, wrote to the Calleijas' solicitor advising that Mr Lockrey would not be selling the property. The letter stated that CLS Legal would contact the Calleijas' solicitor if this changed "within the next couple of months".

[11]

Entry into the contract and lease

Mr Fussell first became acquainted with Mr Lockrey in mid-2011. Mr Fussell was conducting a horticultural supplies business at Wallacia, a suburb of Sydney, under the name "Blue Star" (at the time, the business was being conducted by a partnership; the company BSTC was not incorporated until later). The business involved converting organic waste materials into potting mixes, garden mixes, composts and fertilisers. On a few occasions, Mr Fussell picked up wood chip waste from the Camellia property at Mr Lockrey's request. He was also picking up waste at the property next door and would drop in on Mr Lockrey.
At the time, there were four other people who were making use of the premises. Keith Hudson used the premises to park heavy machinery and to store tools in a container unit. Gary Wilding was operating an earthmoving business from the premises and was using the premises to store material and waste. John Lee (later referred to in cl 33 of the lease: see [41] above) was using part of the old factory as a workshop. There was another man named Alan (or "Al") living in a caravan on the property.
According to Mr Fussell, when he first started visiting the property in the second half of 2011 there was a great deal of assorted junk lying around. There were also reclaimed building materials and items of equipment from the factory, some of which Mr Fussell bought from Mr Lockrey. People employed by Mr Lockrey were working on the site to clear it up.
Mr Fussell said that he became friendly with Mr Lockrey. Mr Lockrey would come downstairs and they would have morning tea together, often with Mr Hudson.
In evidence there are a number of file notes from CLS Legal made by Ms Boustani in 2012 about the transaction with Mr Fussell which is the subject of these proceedings. Ms Boustani's note of 7 February, which is the earliest, records instructions from Mr Lockrey concerning a proposed sale to Mr Fussell. It refers to a price of $1.7 million with a settlement period of five years and also refers to payments of $50,000 on execution of the contract, further payments of $50,000 every six months and payments of $1,000 "rent" (also described as a "licence fee") per month.
On 14 March Ms Boustani wrote to Mr Lockrey enclosing a costs agreement "for the new terms contract that you have requested". The letter stated that CLS Legal would contact Mr Lockrey early the following week "to arrange a conference to review the draft contract". A file note of Ms Boustani's shows that Mr Lockrey discussed the proposed transaction with her again on 27 March.
Bruce Hanrahan, solicitor, acted for Mr Fussell on the transaction. On 2 April Mr Hanrahan wrote to Mr Fussell confirming his instructions to act on the purchase of the property and noting that there was to be a lengthy delayed settlement on the basis that Mr Fussell would be granted occupation of the property pending settlement.
On 3 April Mr Fussell sent an email to Ms Boustani under Mr Lockrey's name. He explained that Mr Lockrey did not have a computer and asked him to send it on his behalf. The email stated: I have attached a brief note to clear up how the agreement will be drawn. Please write back if there are any points which need clarification.
The attachment stated: Contract for sale, requires 2 separate contracts. 1) $500,000 payable in 10 instalments of $50,000, first payment made on exchange and following payments on the 6 month anniversary. 2) Contract for sale at $1,700,000 with no deposit and settlement in 5 years. Agreement to occupy the premises of 19 Grand Avenue The purchaser, B.J.Fussell shall occupy the premises upon exchange, with the following exclusions. 1) The residence which is built above the offices, the garage and rooms built above it, the transportable house and associated shipping containers , all areas necessary to gain uninterrupted access, which will be occupied by Mr Jim Lockrey Mr John Lee is currently occupying the workshop, which he rents, payable to Jim Lockrey, if however Mr Lee moves out of the workshop it will be occupied by Mr Fussell with a further $1,000 per week payable. Consideration paid by B.J.Fussell to Jim Lockrey shall be $1,000 per week, plus rates payable to Parramatta Council (rate notice handed over or copied and payment to be made by Mr Fussell). Every rate notice after exchange. As detailed above if Mr John Lee vacates the premises the weekly payment will increase to a total of $2,000 per week plus rates. This shall be payable weekly with a receipt issued.
Initially Mr Fussell stated that the attachment was prepared by Mr Lockrey, but eventually he said that he could not recall who prepared it and that he might have prepared it.
A further file note of Ms Boustani's dated 12 April refers to discussions with Mr Lockrey concerning the proposed sale, but it is not clear whether a draft contract was prepared at that point.
On 2 May (Wednesday) Mr Fussell sent an email to Mr Hanrahan which stated: I have been waiting for the vendors solicitor to create the contract for sale. I have visited them today with the vendor and the contract is supposed to be ready this afternoon. It should arrive to you on Friday morning, hopefully. I really want to make this deal happen as quickly as possible. Just between you and I, the vendor is not in good health and he is due to leave the country next week. If the contract arrives, and if you have the time to see me on Friday, I would like to come across and sign. The contract has a $50,000 deposit to be paid. Would you send a bank cheque or solicitor's cheque? I can organise either $50,000 in cash or a bank cheque, as need demands. Sorry if I seem a bit impatient, but this deal has taken so long to put together and I can't afford for it to fall over.
In evidence are file notes of both Ms Deigan and Ms Boustani dated 2 May. There are also some undated notes of Ms Boustani's and typewritten drafts with handwritten alterations.
Ms Deigan accepted that it was on her advice that the transaction was ultimately documented as a contract for sale at a price of $1.7 million and a lease to Blue Star for rent of $100,000 per annum. The evidence does not identify precisely when Ms Deigan gave this advice to Mr Lockrey. The eventual lessee, BSTC, was not actually incorporated until 30 March, and its name first appears in the documentary evidence in Ms Boustani's note of 2 May. Mr Fussell denied in cross-examination that he incorporated the company for the purposes of the lease, but he was not asked what other reason he might have had for incorporating it. What is clear is that Ms Boustani and Ms Deigan must have been told about the company, and that it would be the lessee, by Mr Lockrey. This cannot have happened any later than 2 May and Mr Lockrey must presumably have become aware of the company's incorporation and have negotiated its becoming the lessee before he met Ms Deigan and Ms Boustani on that day.
On Friday 4 May Ms Boustani wrote to Mr Hanrahan enclosing a draft contract and lease. The letter stated: We confirm that it is not intended to create contractual relations between the parties unless and until contracts are exchanged. We look forward to hearing from you regarding an exchange. The letter was sent by express post. The special conditions and the lease were also sent by email.
The evidence does not allow any detailed findings to be made about the process by which the initial draft of the contract and the lease were prepared or the extent (if at all) that the terms were the subject of advice to, or instructions from, Mr Lockrey. Ms Deigan referred in her evidence to template special conditions being purchased from an external supplier, but the evidence does not identify whether this is where cl 33 came from.
The drafts sent to Mr Hanrahan on 4 May were very similar to the contract and lease ultimately entered into. A file note of Ms Boustani's shows that on 7 May (the following Monday) she spoke to Mr Lockrey about the draft and also to Mr Hanrahan. She then sent Mr Hanrahan fresh documents which inserted an additional clause in the lease concerning Mr Lee's informal tenancy (cl 33) and made amendments to two special conditions in the contracts, namely those concerning rent outstanding at completion (cl 37.7) and the licence of the demountable building (cl 48.2). Early on the morning of Tuesday 8 May, Mr Hanrahan emailed Ms Boustani with suggestions for a further minor amendment to cl 48.2 and the provision in the contract concerning Mr Lee's tenancy (cl 51.10). These were agreed by Ms Boustani. None of the amendments was of any consequence for the issues in this case and I have not attempted to summarise the changes. The final versions of each of the clauses have already been set out.
The tax invoice issued by Mr Hanrahan and Mr Fussell is in evidence. It records that on 7 May Mr Hanrahan had a conference with Mr Fussell to discuss the provisions of the contract and obtain further instructions from him. There is no other record of any discussion between Mr Fussell and Mr Hanrahan of the terms of the contract. It is not clear whether the amendments made by Ms Boustani on 7 May resulted from further discussion between Mr Lockrey and Ms Boustani, or from requests by Mr Hanrahan. But it is clear that the special condition in issue in this case, cl 33, was included with the draft sent on 4 May and was not the subject of any comment or change.
Later on 8 May Mr Hanrahan forwarded executed copies of the contract and the lease, together with a cheque for the deposit. On Thursday 10 May Mr Lockrey executed the contract and lease. By letter of the same date the contract as executed was sent to Mr Hanrahan by way of exchange (together, I assume, with the lease as executed, although that is not referred to in the letter).
Mr Fussell gave evidence by affidavit setting out his version of the negotiations with Mr Lockrey which resulted in the contract being entered into. According to Mr Fussell, from about January 2012 Mr Lockrey allowed him to use the property as another location for the Blue Star business. Initially the arrangement was informal, with Mr Fussell paying Mr Lockrey $1,000 per week. After a while, Mr Fussell decided that he wished to buy the property as a permanent base for his business. Mr Fussell said that he had a conversation with Mr Lockrey to the following effect: Fussell: I really want to buy this place and use it for my business. I want a delayed settlement, about five years, to give me plenty of time to get the funds together. But I'd like to be able to use the land in the meantime. Lockrey: That's fine with me, so long as I can get some rent before we settle. Fussell: I am happy to pay rent to use the Property until I have the funds to buy the land off you. But only if I can buy this place. I rented places for the first 17 years of my business and I never want to do that again. I did all this work on those properties and then had to leave all my hard work behind. It takes a lot of time and resources to build good will and sales from a site. I reckon here it will take me at least 10 years to set up a landscape supply yard and renovate the old sheds to make them look new again. Lockrey: You can do what you like with this place so long as I can do what I like before I die. Between you and me, I haven't told Lilly that I'm selling the Property. Don't worry, the Property is in my name so she doesn't need to agree. But I am terrified of upsetting her because she goes crazy. When she is good she can be really nice, but when she gets angry, I worry that she will kill me! I once had to take an AVO out against her after she chased me around with a knife, trying to stab me. I want to put a clause in my will that if she kills me she is not entitled to inherit anything! I tried to sell the Property before. Even found a buyer and had a contract drawn up and all. When Lilly found out, she literally chased the buyers off the Property, yelling at them in Chinese. They were Chinese buyers, and I don't know what she told them, but they never came back! So don't tell Lilly I'm planning on selling this Property to you. I don't want her to find out, otherwise I may wake up with a knife in my back! But when I sell the Property, Lilly won't have anything to worry about. When I die she will have the rent until settlement. She doesn't need to find someone to buy the Property and she won't have to worry about tidying the place up. Lilly can just buy a block of land and move that little house onto it!
Mr Lockrey had a history of poor health. Sometime before 2005, Mr Lockrey was diagnosed and treated for bladder cancer. In around 2005 or 2006, he was diagnosed with prostate cancer which required an operation and subsequent radiation therapy. In around 2009 or 2010, he had another operation which involved placing four stents into his heart. He was also a smoker and prone to fits of coughing. According to Mr Fussell, he did not think, based on Mr Lockrey's apparent ill health, that Mr Lockrey would survive for the five year settlement period specified in the contract. Mr Fussell said that he believed that Mr Lockrey had the same understanding.
Mr Fussell said that shortly before 2 May Mr Lockrey told him that he was going on a holiday to Bali. Mr Fussell was anxious to complete the transaction because he thought that Mr Lockrey might not survive the trip. Mr Fussell said that he went with Mr Lockrey on 2 May to visit Ms Deigan and Ms Boustani. His evidence continued: In that meeting, I said words to the effect of: "I will buy the Property with a delayed settlement, and move in under a licence in the meantime". Ms Deigan said to me words to the effect of: "We should handle that instead by way of a commercial lease. We will make the lease six years to cover any interim period after the settlement date, in case it doesn't settle on that day."
Ms Deigan denied that any such conversation took place between her and Mr Fussell. She said that Mr Fussell did visit her offices with Mr Lockrey on one occasion, but she told Mr Fussell that he could not be present as he had his own solicitor. Ms Deigan said Mr Fussell left the offices of CLS Legal when she told him this, although he might have waited around outside. In response, Mr Fussell accepted that Ms Deigan told him it was inappropriate for him to participate in the meeting because he had his own solicitor, but maintained that she allowed him to stay anyway.
Ms Deigan was pressed on this issue in cross-examination but I accept her evidence. Her note of 2 May is headed "JL" (a reference to Mr Lockrey) and underneath there are a series of dash points, the first of which reads "Fussell". It was suggested to Ms Deigan that her note recorded that both Mr Lockrey and Mr Fussell had been present, but she denied this and in my view the note indicates to the contrary. The natural reading of the note is that the conference was with Mr Lockrey and that Mr Fussell was discussed. It follows that I must reject Mr Fussell's evidence on this point as inaccurate.
Mr Fussell accepted that there was never any discussion with Mr Lockrey, Ms Deigan or Ms Boustani about what would happen if Mr Lockrey died before settlement. But he said in his affidavit that he raised the question in a telephone conversation with Mr Hanrahan "on or about 4 May". Mr Fussell's evidence was: …I said words to the following effect: "If Jim dies before settlement, I want to make sure the contract can't be cancelled - that there's nothing in there that they can cancel it." Mr Hanrahan said to me words to the effect of: "You don't have to worry about that. There's nothing in there." Mr Fussell's evidence was that he signed the contract on this understanding. He said that he did not read the contract nor was he aware of cl 33 until after Mr Lockrey's death in May 2017.
In cross-examination, Mr Fussell initially said the conversation with Mr Hanrahan took place on Friday 4 May, which he said was when the contract was signed. He said he did not believe the conversation took place in a telephone call, and when shown his affidavit he said the conversation took place across the desk with Mr Hanrahan but he might have already asked Mr Hanrahan about it on the telephone. He also said that he asked Mr Hanrahan whether if he died his sons could take over the contract and was told they could.
Mr Fussell said that he accompanied Mr Lockrey to the city when Mr Lockrey went to sign the contract on 10 May. His evidence continued: I walked with Jim to his solicitors' office. I did not want to be caught in a meeting, like on the first occasion, so I stayed on the ground floor. After less than 10 minutes, Jim returned. I said words to the effect of: "That was quick". Jim replied: "Yeah, I just signed it and left. I couldn't be bothered reading it". On the rivercat back to Parramatta, Jim and I had a conversation using words to the following effect: Lockrey: Ah well, I don't own any property now. Fussell: Don't worry, you can live in peace, I won't give you any trouble. Lockrey: Well it feels good to sort out my affairs, and at least everything is set up so when I die Lilly doesn't have to worry about what to do with the place.

[12]

Events following exchange

Following exchange on 10 May, Mr Lockrey travelled to Bali. Mrs Lockrey said that after he returned, Mr Lockrey was largely confined to his quarters upstairs in the factory building. A forklift was used to lift him down when he wanted to come downstairs. Mr Hudson said that Mr Lockrey stayed in his quarters for months at a time. Mr Fussell, on the other hand, said that Mr Lockrey continued to come downstairs and move around the property. As Mrs Lockrey and Mr Hudson were not cross-examined on this question it is not possible to make final findings. But it does seem that the regular morning teas continued in Mr Lockrey's living quarters upstairs. Mr Hudson referred to this and Mr Fussell produced a number of photographs of Mr Lockrey at morning tea which post-dated May 2012.
Arrangements were made after 10 May for the Deed of Life Estate and the transfer to be executed. Ms Boustani prepared the Deed of Life Estate and Mr Hanrahan prepared the transfer. The two documents were executed by Mr Fussell and sent to Ms Boustani. In July, Ms Boustani returned them to Mr Hanrahan, executed by Mr Lockrey. Mr Hanrahan subsequently had the contract stamped.
The transfer form as prepared by Mr Hanrahan and then executed by Mr Fussell and Mr Lockrey was in the form specified in the contract (see cl 49.5 at [31] above). It provided for Mr Lockrey to transfer his interest in the property to himself and Mr Fussell, the transfer to himself being of "the Life Estate" and the transfer to Mr Fussell being of the "remainder". The term "Life Estate" was no doubt intended to pick up the definition in the Deed of Life Estate (see [32] above) but it was not defined in the transfer itself. As a result there was nothing in the transfer to limit it to the upstairs residence as had been intended. On the face of it, the transfer would, on registration, vest a life estate over the whole of the property. This was, it seems, not noticed by the parties at the time and only came to attention later (see at [115]-[116] below).

[13]

Activities at the property from May 2012

Mr Fussell's evidence was that the "Blue Star" partnership business continued to operate from the Camellia property after the incorporation of BSTC in March 2012. There appeared to be little, if any, distinction between the Blue Star partnership business and the business conducted by BSTC, but Mr Fussell suggested that some of the equipment used had been purchased by the partnership and also that the EFTPOS terminal used for sales was in the name of the partnership. There was no evidence in the form of financial statements which would clarify this. In any event, Mr Fussell accepted that BSTC was operating its own business from the premises.
In June 2012 Mr Fussell asked Mr Wilding to leave the property. He gave Mr Wilding a written notice to vacate. A copy of the notice is in evidence. It required Mr Wilding to vacate the premises and remove his belongings by 29 June and not to enter the property after then without the "express written permission of the principle [sic] authorised tenant".
In June 2012 Mr Fussell also gave Mr Lockrey a document in the form of a letter concerning "site insurances". A copy of the letter is in evidence. It referred to liability insurance having been obtained in accordance with "contractual obligations between the parties" (this was presumably a reference to cl 9.5 of the lease). The letter stated that "our" insurance cover was $20 million "as per contract" and that "our company" covered all workers "employed directly by us". The letter was addressed to Mr Lockrey from "Bernie Blue Star".
At around the same time, Mr Fussell engineered the departure of Al from the property. According to Mr Fussell, Mr Lockrey complained to him that Al was a hanger-on and Mr Fussell suggested that Mr Lockrey stop paying him. In cross-examination, Mr Fussell said that he created the "site insurances" letter for Mr Lockrey so that it could be shown to Al, presumably as some sort of justification for not paying him. According to Mr Lockrey, Al left shortly afterwards. Mr Fussell said that Mr Lockrey had also asked him to make Mr Wilding leave. But it seems clear enough that Mr Fussell also wanted to make full use of the lease which BSTC had taken over the property. For the moment, Mr Lee, whose departure would result in BSTC having to pay additional rent (see [41], [58] above), remained.
In August 2012, Mr Fussell prepared a form of agreement between himself and Mr Lockrey concerning "site clean up" at the property. The letter stated: This agreement shall take effect from 20th August 2012. The purpose of this agreement is to work out who will take responsibility for cleaning up the site and who will pay the costs associated with the work, including labour and tip fees. The Aim of this agreement is to simplify the responsibilities and clear up any confusion. Basically it is agreed that Bernie Fussell will assume the task of cleaning up the entire property. This will include removing unwanted materials, rubbish, leftover building materials etc. Bernie will pay the labour costs, the costs of any machinery involved and all transport and tip fees associated with the disposal of waste. Jim Lockrey will identify any belongings that he wishes to keep and they will be put aside or moved into storage on his behalf. When the shipping containers are emptied they will be advertised for sale and the proceeds of the sale will belong to Jim Lockrey. Other Items that Jim may wish to sell will be advertised on his behalf and all monies from their sale will be paid to Jim. The value of any resources recovered will be used to subsidise the costs associated. This will include scrap metal. Any tyres that are to be kept should be identified and the rest will be sent for disposal. If any belongings in the containers that need to be moved we will help out and put these things where they are wanted. We will need to use the old 8 ton forklift and the mobile crane to continue with the cleanup. Some containers need to be moved around and we can help with this job.
Space was provided for signature by Mr Lockrey and Mr Fussell. But it was not in fact signed. Mr Fussell's evidence was that he told Mr Lockrey that the property needed to be tidied up and that Mr Lockrey agreed. But Mr Fussell said that after the document had been prepared Mr Lockrey asked him to leave his junk until he died. Mr Fussell was not asked about this in cross-examination.
In July 2013 Mr Fussell moved into the ground floor of the office building, converted the office into living quarters and started to live there. He said that he told Mr Lockrey he would like to live at the property so as to keep an eye on the machinery which was there as part of the operations of the Blue Star/BSTC business and that Mr Lockrey agreed. In her affidavit, Mrs Lockrey described a conversation with Mr Lockrey after seeing "a person she now knows" to have been Mr Fussell at the office. She said Mr Lockrey told her that the person in question was going to live in the office and this would improve the security situation. The form of conversation suggests that Mrs Lockrey had not yet met Mr Fussell. On the other hand, Mrs Lockrey gave evidence that she was aware that Mr Fussell had done work in the workshop in May 2012. She also said he and she were involved in an incident in August 2012 which resulted in her car being damaged. Because Mrs Lockrey did not give evidence the issue was not resolved. It is however clear that by April 2016 Mrs Lockrey was aware who Mr Fussell was and that he was renting the property.
According to Mr Fussell, between 2012 and May 2017 he made a number of what were described as "improvements" to the property. According to Mr Fussell, such work included cleaning the property and removing old building material, painting the walls and ceilings of the offices, putting in new doors and replacing some of the gutters on the factory. Mr Fussell and his sons did much of this work themselves.
On Mr Fussell's evidence, Mr Lockrey never objected to this work; indeed he approved of it. Mr Fussell said that around the time of the execution of the contract: …I had a conversation with Jim where he said to me words to the effect of: "Oh well, I don't own anything anymore." He looked relieved when he said this. He also said to me words to the effect of: "I've spent so much time and money trying to clean this Property up. I don't have to bother with that anymore. I don't have to pay those people to clean up anymore."
Mr Fussell appears to have interpreted this conversation and the absence of Mr Lockrey's objection to mean he could make such alterations to the premises. Mr Fussell otherwise never asked for permission from Mr Lockrey to undertake the improvements.
In his affidavit evidence, Mr Fussell claimed that he paid for the improvements. But in cross-examination he acknowledged that in fact BSTC paid for all necessary materials.

[15]

Proposed agreement concerning occupation of the "House"

At the hearing, Mr Fussell gave evidence that he and Mrs Lockrey disliked each other. In his affidavit he gave evidence of an altercation with Mrs Lockrey in 2014, but it appears that the relationship between them was always poor.
In February 2014, Mr Fussell prepared an agreement between Mr Lockrey as lessor and BSTC as lessee. It stated: This agreement should form part of the Lease agreement Contract signed on the 10th May 2012. The principles agreed to in this contract were originally negotiated prior to signing the Lease agreement, they were not however put into the original Lease. It is the purpose of this addition to the lease to clear up any areas of uncertainty and make the Lease more workable. It is hereby agreed that: in the event that Jim Lockrey lives for a term which is shorter than the completion of the lease term, that the managers residence could be used by Bernie Fussell (Blue Star). The managers residence shall be deemed to be the first floor house directly above the offices and also above the 5 car garages. It does not include the use of those garages. All costs related to the maintenance and repair of the premises shall be paid by Mr Fussell. Any services connected to the property shall be terminated prior to occupation, these shall include L.P.G bottles, phone and internet connections and cable television. The occupation of the managers residence would be effective from a date 28 days after the passing of Mr Lockrey. Upon this date the areas occupied by the lessee will be the yard space, the workshop area, and the upstairs residence as outlined in the survey attached to the lease. The garages and 3 bedroom home (re-locatable) would continue to be occupied by Mei Lockrey as per the original lease agreement.
The document contained space for signature by Mr Lockrey and Mr Fussell to be witnessed by Mr Hudson and Mr Fussell's son Martin. But it was never signed.
According to Mr Fussell, at some point during the negotiation of the contract in 2012, Mr Lockrey said to him words to the effect: "When I die, you may as well move into the upstairs house because Lilly lives in the demountable."
Mr Fussell said that in February 2014 he read over the lease and noticed that it did not contain anything about what Mr Lockrey had said. According to Mr Fussell, they had a conversation to the following effect: Fussell: "You know how we discussed my using the space upstairs? It's not in the Lease." Lockrey: "Well it's yours. I feel like I'm dying, so we should probably tidy things up. Why don't you type up an agreement to deal with this? I still haven't told Lilly about having sold this property, and I don't want her to find out. But if we sign this agreement you can just present it to her after I die."
But Mr Fussell said that when he prepared the document and handed it to Mr Lockrey he appeared offended and said: "This looks like you just want me to die!" Mr Fussell said he then dropped the subject.
I am sceptical about Mr Fussell's account of how this proposed agreement came to be prepared. Had a conversation about the subject taken place in 2012, there seems no reason why it would not have been incorporated into the lease. And it seems implausible that Mr Lockrey would have been offended by being asked to sign the document if he had himself asked Mr Fussell to prepare it a few days beforehand, as Mr Fussell claimed. The bare sequence of events would suggest that Mr Fussell prepared the document on his own initiative out of a concern to shore up his position against Mrs Lockrey in the event of Mr Lockrey's death. That would fit comfortably with Mr Lockrey's offended reaction. But it is not necessary to make any findings on the question.

[16]

Rent issues and early settlement

Rent receipts prepared by Mr Fussell are in evidence. Each receipt was signed by Mr Fussell (on behalf of BSTC) and Mr Lockrey. Mr Fussell's son Martin and Mr Hudson also signed as witnesses. The receipts show that during the first few months, the rent was often paid after the first day of the month, which was the due date under the lease. But for the period from December 2012 until July 2014, rent was paid well in advance, apart from the rent for May 2013 which was not paid at all. Mr Fussell explained this as an oversight on his part which he did not discover until Mr Lockrey died in 2017.
In June 2013 Mr Fussell asked Mr Lee to leave the property. Mr Lee's departure triggered BSTC's obligation to pay an additional $2,000 rent each month under cl 33 of the lease (see [41] above). Rent certificates show BSTC paid this additional amount from 1 July 2013 until 30 June 2014.
BSTC maintained the practice of paying rent in advance for the period up to July 2014. But from August 2014, rent fell into arrears. From July 2014 BSTC also ceased paying the extra $2,000 rent for the workshop formerly occupied by Mr Lee. Mr Fussell's evidence did not explain why these payments ceased.
In early-to-mid 2016, Mr Lockrey's health deteriorated further. He moved into the demountable building with Mrs Lockrey so he could receive her support and assistance. Mr Fussell said he hardly saw or spoke with Mr Lockrey after this.
Mrs Lockrey gave evidence that she found out about the sale contract in April 2016. Mrs Lockrey said that she was told by the neighbours that Mr Fussell was describing himself as the owner of the property. Mrs Lockrey then obtained a copy of the contract.
In June 2016, Steven Brown, solicitor, wrote to Ms Deigan to inform her that he now had carriage of the matter in place of Mr Hanrahan. Mr Fussell's evidence was that he was willing to settle early in August 2016 and engaged Mr Brown as his solicitor for this purpose.
Mr Fussell said that in July 2016 he approached St George Bank for a loan to finance the purchase, but was told: "There's a problem with us settling the mortgage, because Mr. Lockrey has a life estate over the entire property, and his name will be on the title deeds."
Early in August 2016, Mr Brown contacted CLS Legal with a view to organising an early settlement. He spoke to Liesel Pierce, an employed solicitor who was assisting Ms Deigan with the transaction. Correspondence ensued. Mr Brown made the point that the form of the transfer did not reflect the parties' intention that the life estate was to be limited to the "House". It would entitle Mr Lockrey to receive the whole of the rent and oblige him to pay the rates and outgoings. Mr Brown also said that, to be registrable, the life estate had to cover the whole property. A life estate over part of the property could only be an equitable interest, protected by a caveat. Mr Brown suggested that instead of the life estate Mr Fussell should purchase the fee simple and grant Mr Lockrey a lease for life of the "House". This would enable Mr Fussell, on completion, to deal with the lease to BSTC in his own way and would mean that Mr Fussell, not Mr Lockrey, would have to pay the rates and other outgoings.
In response, Ms Pierce indicated that an early settlement was acceptable. But she pointed out that the rent was in arrears. She also said that Mr Fussell had failed to pay the sum of $500,000 for the purchase of "certain items" at the property. Mr Brown then wrote seeking an explanation.
On 25 August, Ms Deigan wrote back to Mr Brown: I have been able to make contact with my client. The $500,000 was a payment your client was to make to our client in connection with various items he was acquiring in addition to the property and was to have been paid prior to exchange. We were only recently made aware of the arrangement and the fact that the moneys were not paid. Your client is currently at least 4 months behind in his lease payments to our client and he owes a significant amount of rent in respect of the part of the premises that were formerly occupied by a tenant which your client required to vacate and was paying the rent in lieu. In discussing the matter with our client our instructions are that our client wants the outstanding moneys resolved before we will consider any amendments to the documents. However, he has instructed that if your client would like to acquire the property now not subject to the life tenancy he would consider relinquishing it on the following basis: 1. The contract is settled within 8 weeks; 2. The purchase price is increased by $1.5m being the $500,000 and a further $1m for the life estate; 3. The rent is paid in full by completion; … 5. The contract is varied by deletion of the reference to the life estate but settled otherwise on its terms (subject to the agreed variation contained in this email).
On 29 August, Mr Brown sent an email response to Ms Deigan. Relevantly he noted: …our client denies any collateral agreement concerning the unspecified "various items he was acquiring in addition to the property". Mr Fussell is not aware of any alleged arrangement. Is the alleged arrangement documented? If so please provide us with a copy so we can discuss with Mr Fussell. We are instructed that the arrears in rent will be paid. Please provide details of the issues concerning the former tenant [Mr Lee] which our client required to vacate, as he is again not aware of what that alleged arrangement is about. Is the alleged arrangement documented? If so please provide us wth a copy so we can discuss it with Mr Fussell. Mr Fussell is not willing to pay more for the interest he is acquiring than that which has been negotiated. Mr Fussell does need to deal with the following issues concerning the documentation that was drafted, including: 1 - if there is a life estate, then how will the issue of rent be addressed. The special conditions in the contract are to the effect that once there is a completion of the sale, the rent under the subsisting lease is to be paid to the purchaser not the life tenant? How does the Life Tenant propose to have this transfer of rights recorded? 2 - We note that as Life Tenant all rates and taxes on the land will be paid by the Life Tenant during their life time. … Mr Fussell opines that the vendor has no interest in resolving the drafting ambiguities now and as such will look to raise the matters again prior to the scheduled settlement in May 2017.
On 2 September, Ms Deigan responded, stating she was "instructed not to consider any drafting issues until the other matters are resolved". Mr Brown responded: Matter for your client about when the issues are to be addressed and tied up. Unless your client wishes to do so sooner, as advised our client will revisit the matter closer to the proposed settlement date next year.
Ms Deigan did not take the issues further and the correspondence ceased.
Mr Fussell's evidence was that Mr Lockrey adopted a carefree attitude to the payment of rent. Mr Fussell said that, at some unspecified point, Mr Lockrey told him: "Don't worry about it Bernie. If you're not travelling well don't worry about paying rent, you can catch up later."
Ms Deigan gave evidence of discussions with, and instructions from, Mr Lockrey which painted a different picture. According to Ms Deigan, from about March 2016 onwards, Mr Lockrey complained that Mr Fussell was well behind on his rent (including the additional rent following Mr Lee's vacation of the premises). According to Ms Deigan, Mr Lockrey wished to terminate the arrangements with Mr Fussell; she said that he told her that on the current state of the market that he would inevitably get a better deal. Ms Deigan also said that Mr Lockrey told her that Mr Fussell had agreed to pay $500,000 for materials on the site, but had not honoured the agreement.
Ms Deigan said that she advised Mr Lockrey that a default under the lease was not a default under the contract and that, while Mr Lockrey could sue Mr Fussell (and, in Ms Deigan's opinion, should do so), he would have to wait until the time for settlement arose, give a notice to complete, and then terminate the contract if Mr Fussell failed to pay. She said that Mr Lockrey could not be bothered to sue and instructed her to await default after completion, and then terminate the contract. Ms Deigan's advice to Mr Lockrey made no mention using the failure to pay rent as a ground to terminate the lease which would in turn result in termination of the contract (see [43] above). But she was not asked about this in cross-examination and I proceed on the basis that Mr Lockrey thought he had no choice but to wait until after 10 May to terminate.
Ms Deigan in her affidavit stated that in the course of these discussions with Mr Lockrey she reminded him that she had advised him against selling to Mr Fussell in the first place and that Mr Lockrey ruefully acknowledged this. Her affidavit did not set out the advice she had given back in 2012. In cross-examination, she said: I kept saying, "This man's only got $50,000, and you shouldn't agree to it." The context, however, left it unclear whether this related to the amount of the deposit, or the whole transaction.
Ms Deigan was not challenged on any of this evidence. In evidence there is written acknowledgement from Mr Lockrey for advice given before entry into the contract in May 2012 of risks associated with the lease to BSTC and the contract for sale to Mr Fussell "including but not limited to those relating to the low purchase price and the length of the completion period". Ms Deigan's file notes and emails to Mr Lockrey and Mrs Lockrey amply support her evidence of Mr Lockrey's complaints about Mr Fussell's failure to pay rent and Mr Lockrey's desire to get out of the contract. To the extent that Mr Fussell's evidence that Mr Lockrey was relaxed about failure to pay rent relates to the period after 2014, I must therefore reject it.
The rights and wrongs of Mr Lockrey's complaint about the $500,000 payment for materials are less clear. There is no contemporaneous evidence of any such agreement, although the document prepared by Mr Fussell in August 2012 which was never signed (see [91]-[92] above) appears to have touched on a similar subject matter. In an email sent to Mr Lockrey on 2 September 2016, Ms Deigan said that the $500,000 payment had been "something that we advised you to either document or ensure was paid before you exchanged contracts, now you really do not have a leg to stand on regarding that payment". This suggests that the issue was discussed in 2012, but in her affidavit Ms Deigan said that the first she heard about the issue was on 2 August 2016. Because Ms Deigan was not cross-examined on this subject, the inconsistency was not addressed in the evidence.
But there is no doubt that, by mid-2016, Mr Lockrey wanted to obtain an additional $500,000 payment from Mr Fussell, and was seeking to make that a condition of any further negotiations. He was also seeking to use the negotiations as a way of extracting a further $1 million by way of payment for the life estate, which seems likely to have been much more than it was worth. It is equally clear that Mr Fussell was unwilling to pay the extra amounts Mr Lockrey wanted and was only prepared to complete the transaction at the price specified in the contract.
From August 2016 onwards Mr Fussell made efforts to reduce the rent arrears. Three monthly rental payments were made between 3 August and 9 September. A further monthly payment was made in December. Three monthly payments were made in March 2017, a further two in April and then on 4 May a payment was made for three months' rent which covered arrears up to the end of February 2017 (apart from the May 2013 payment which had not yet been identified). In April an additional payment was made for the workshop rental for the four months from September to December 2015. The workshop rental from July 2014 to August 2015 and from January 2016 onwards remained unpaid. The evidence did not explain why the payment was made for this particular four month period.
It appears that from 2016 onwards, Mr Lockrey's affairs were increasingly in the hands of Mrs Lockrey who was communicating with CLS Legal. The rental receipts from 13 August onwards are signed by Mrs Lockrey on Mr Lockrey's behalf with the exception of the receipt dated 21 March 2017 which is signed by Mr Lockrey.
According to Mr Fussell, he last saw Mr Lockrey when he visited him at the demountable home in March 2017. Mr Fussell said they did not discuss the contract or the property.
Mr Fussell's evidence was that in April 2017 he had approximately $1.2 million in bank accounts available to complete the contract. In addition he said he could have drawn on monies from his son and Mr Viglione. He also took steps to secure some additional external finance. In evidence are an email dated 15 April from JCB Construction Equipment Australia offering to purchase from Mr Fussell some machinery for $145,000 and a letter dated 24 April from Ozwide Asset Management (apparently a finance broker) recording that approval was held for a loan of $234,000 which was to be secured against two other items of machinery. Mr Fussell said he did not accept these offers because he was hoping to obtain more favour terms (he said he did ultimately accept a more favourable offer from Ozwide in June).

[17]

Events from May 2017

Settlement of the contract of sale did not occur on 10 May 2017. The date passed without any communication between the parties' solicitors. According to Mr Fussell, he did not himself proceed to completion on 10 May because he was hoping to obtain more favourable finance terms, although he said he would have been able to complete, if necessary.
On 12 May 2017 (a Friday), Mr Lockrey died. The evidence of Ms Deigan and Mr Fussell was that they became aware of this fact on 12 and 13 May respectively.
On Tuesday 16 May, Mr Brown sent an email to Ms Deigan seeking to arrange a date for settlement. The email said: We confirm we are seeking to arrange settlement of this matter. We hold a signed transfer. We received this when we obtained the file from the purchaser's previous solicitors. Please advise if you wish us to forward it to you or retain it in our file. Having regard to the date of exchange being in 2012, stamp duty has been paid the transfer has been marked accordingly. Please advise when we can book in settlement. As there is a signed transfer we presume the death of the vendor last Friday will not delay settlement. We look forward to being advised when settlement can take place.
On Thursday 18 May, Ms Deigan delivered by hand a letter to Mr Brown referring to Mr Lockrey's death and enclosing a notice of rescission, to which I will refer as the "May notice of rescission". The letter also enclosed a cheque of $50,000 representing the deposit paid in May 2012.
The notice of rescission recited the parties' entry into the contract and Mr Lockrey's death on 12 May, and then gave notice of rescission of the contract pursuant to cl 33.2. It was expressed to be given by "Commercial Legal Solutions Pty Limited ACN 604 467 905 t/as CLS Legal, as solicitors for the Estate of the Late James Boyd Lockrey" and was signed by Ms Degian as: Carolyn Patricia Deigan CLS Legal Solicitors for the Purchaser
On Monday 22 May, Mr Brown sent an email to Ms Deigan which stated: Our client is ready, willing and able to complete its purchase of the property. The contract was exchanged in 2012, and the transfer executed by the vendor in anticipation for completion. We note that due date for settlement was 10 May 2017. Settlement has not been arranged due to the death of your client, the vendor. We see no reason why the sale should not be completed. As our client will now become the registered proprietor without the need for any life estate to be created, our client will be able to cease paying rent to himself. By continuing to be a tenant rather than registered proprietor our client is suffering harm and loss. To stop the harm, he needs to complete the purchase. If there is a reason unknown to us why settlement cannot please advise us [sic]. If not we would like to arrange a settlement date as soon as possible and without the need of a notice to complete having to be issued.
On the same day, Ms Deigan responded by email: Mr Brown, the notice served under the contract was unequivocal and will be relied on by the estate.
There was some confusion as to whether Mr Brown was aware of the delivery of the notice of rescission to his firm's office since he sent a response to Ms Deigan's email above enquiring about the whereabouts of the notice. However, Mr Brown confirms in his affidavit that his firm did receive the notice.
On 26 May Mr Brown caused a caveat to be lodged on the folio of the property, claiming an interest pursuant to the contract. On 1 June Mr Brown sent to Ms Deigan an email with a notice to complete attached. The notice nominated the date for completion as 16 June.
On 2 June Ms Deigan replied, contending that there was a clear right to rescind under cl 33.2. The letter advised Mr Brown, for the first time, that Ms Deigan was the executrix of the estate. It also noted that the reference in the notice of rescission to CLS Legal as the "Solicitors for the Purchaser" was obviously incorrect and should have been a reference to the "Solicitors for the Vendor".
On 5 June Ms Deigan sent to Mr Brown two emails. In the first email sent earlier that day, Ms Deigan stated she was reviewing how much rent was outstanding under the lease. She further raised an issue that BSTC was removing "items" from the premises which allegedly belonged to Mr Lockrey's estate. Ms Deigan ended by stating that she would get back to Mr Brown after she had ascertained the outstanding rent and compiled a list of the items that were allegedly removed inappropriately. In the second email sent later that day, Ms Deigan noted that Mrs Lockrey complained to her that Mr Fussell blocked one of the windows on the property with plywood. Ms Deigan alleged that the blocking of the window was affecting "the amenity of Mrs Lockrey's home" and was not an approved modification to the property. She ended the email by requesting that the plywood be removed.
On the same day, Mr Brown wrote to Ms Deigan responding to the first of the abovementioned emails. Mr Brown confirmed his instructions to act for BSTC. The letter enclosed cheques totalling $16,335.00 in outstanding rent. Mr Brown ended by saying that he awaited details of any further rent allegedly still outstanding, and gave details of the items inappropriately removed. The issue regarding the window was not addressed in this correspondence.
Mr Brown and Ms Deigan continued to exchange correspondence between July and October. In an email dated 10 July, Ms Deigan sent her calculation of the amount of rent outstanding which, on her estimation, was in the amount of $166,667.36. Attached to that email were spreadsheets listing the months in which rent was outstanding and copies of the rent receipts for the months BSTC paid rent. Mr Brown disputed this amount. In the same email Ms Deigan maintained her earlier position that items were inappropriately removed from the premises and requested the plywood blocking the window on the property be removed. She also raised a new issue with Mr Brown, alleging Mr Fussell was using the property as a residence which was said to be inconsistent with the terms of the lease. Mr Brown again disputed these allegations. In emails dated 25 July, 2 August and 5 September, he repeatedly pressed for Ms Deigan to promptly apply for probate so that he could pursue a claim for specific performance of the contract.
On 4 October, Ms Deigan sent by email to Mr Brown a copy of the grant of probate (which had been issued on 21 September) as well as a lapsing notice for the caveat issued under s 74J of the Real Property Act 1900 (NSW). Hard copies of both documents were delivered to Mr Brown's firm the following day.
On 16 October 2017, Ms Deigan sent to Mr Brown an email attaching a second notice of rescission to which I will refer as the "October notice of rescission". The letter stated: This notice is served on your client to the extent of any invalidity or claim of invalidity in respect of the notice served on your client on 18 May, 2017.
The October notice was identical to the May notice, except that it was stated to be given by CLS Legal "as solicitors for the [sic] Carolyn Patricia Deigan the Executrix of" Mr Lockrey's estate rather than "as solicitors for" Mr Lockrey's estate.

[18]

Construction of cl 33.2

Counsel for Mr Fussell submitted that, on its true construction, cl 33.2 granted only the surviving party to the contract a right to rescind in the event of the other party's death. Counsel did not dispute that, in the event the right to rescind extended to both parties, Mr Lockrey's legal personal representative could exercise that right (subject to the other issues below).
Set out again are critical parts of the clause: Death or insolvency etc. 33. Without in any manner negating limiting or restricting the rights or remedies which would have been available to the parties at law or in equity had this special condition not been included, should either party prior to completion: … 33.2 die or become mentally ill, then in the case of the vendor or the purchaser either party may rescind this contract by notice in writing forwarded to the solicitor for the other party and this contract shall be at an end and the provisions of clause 19 shall apply;
In express terms, the clause provided that if one party should die then "either" party may rescind. The argument for Mr Fussell required that the word "either" be read as meaning, in effect, "the other".
It was common ground between the parties that the contract was to be construed in accordance with the principles which apply to the interpretation of commercial contracts. But there was a disagreement between the parties on one aspect of those principles.
The parties agreed that the Court could only depart from an orthodox textual interpretation of the clause if the clause were ambiguous. On behalf of Ms Deigan, it was submitted that if on the "plain meaning" of the text, considered on its own, there was no ambiguity, no question of adopting any other interpretation could arise. Counsel for Ms Deigan relied in this regard on Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1; [2011] HCA 45. Counsel submitted that there was no ambiguity in the "plain meaning" of cl 33.2, considered on its own, and therefore the construction argument failed at the outset.
The authorities which bear on this submission were considered by Leeming JA (with whom Gleeson JA agreed) in Cherry v Steel-Parke (2017) 351 ALR 521; [2017] NSWCA 295 at [68]-[86]. His Honour concluded that ambiguity in the relevant sense could only be discerned after regard had first been had to the contractual context. I therefore reject the submission by counsel for Ms Deigan. It is legitimate to have regard to all relevant contextual circumstances in deciding whether cl 33.2 is ambiguous. But, as Leeming JA also made clear in Cherry (at [72]), the Court must always start with the "language chosen by the parties to record their bargain".
Counsel for Mr Fussell put forward a number of contextual circumstances which it was argued gave rise to ambiguity in the relevant sense and suggested that the word "either" should not be read literally. Those circumstances included three textual features of the clause. They also included a number of aspects of the factual matrix and the parties' wider dealings.
The first textual feature upon which counsel for Mr Fussell relied was the introductory phrase "[w]ithout in any manner negating limiting or restricting the rights or remedies which would have been available to the parties at law or in equity had this special condition not been included" in the chapeau. Counsel submitted that the parties' "rights at law or in equity" included a right to obtain specific performance of a contract of sale of land despite the death of the other party. The submission was that cl 33.2 should not be read so as to derogate from that right.
Secondly, counsel referred to the words "then in the case of the vendor or the purchaser" which precede "either party may rescind". Counsel submitted that, if read literally, the words "either party" would be superfluous. In order to avoid this consequence, the submission ran, the word "either" should not be read literally. Instead, the whole phrase should be understood to mean "should either party prior to completion die or become mentally ill, then in the case of the vendor, the purchaser may rescind the contract, and in the case of the purchaser, the vendor may rescind this contract".
The third textual feature upon which counsel relied was that the clause contained no provision for the rescission notice to be sent by someone else on behalf of the rescinding party in the event of death or mental illness. Nor did the definition of "party" in cl 1 of the printed form make any express provision to cover such a case. The notice, however, was to be sent to the solicitor for the other party. This was said to imply that a notice could only be sent by the surviving party to the party who had died, and not vice versa. Counsel argued this construction was supported by cl 20.6.3 of the printed form which made reference to the service of a notice on the other party's solicitor "even if the party has died".
Counsel's submissions on the surrounding circumstances involved two distinct arguments. Firstly, counsel submitted the contract was executed in the context of a close personal relationship between Mr Fussell and Mr Lockrey, which, so it was argued, meant that the right of rescission should be limited to them personally. Secondly, counsel developed an elaborate argument which involved construing the contract of sale alongside the lease. The lease effectively transferred the rights of ownership of the property to Mr Fussell, so the argument went, which meant that the rescission of the contract would be inconsistent with that ownership right. A related submission sought to characterise the contract of sale together with the lease as analogous to an equitable mortgage. The thrust of the submission was it would be inconsistent in an arrangement having the characteristics of an equitable mortgage to allow anyone other than Mr Fussell or Mr Lockrey to rescind the contract.
I do not think the introductory words preserving rights and remedies at general law have the effect for which counsel contended. In the first place, I do not think it is apposite to speak of the enforcement of a contract against the legal personal representative of a deceased party as a "right" as if it were the product of a rule of law or equity. As discussed below, I think it is only an implication which the courts generally recognise in contracts, and which, like all such implications, yields to the parties' contrary intention (see at [281] below). More importantly, the introductory words are clearly designed to expand the parties' rights of rescission. It would be illogical to read those words as in some way supporting an interpretation which would limit the vendor's scope to rescind.
Counsel's argument that the words "in the case of the vendor or the purchaser" give a different meaning to the words "either party" invoke a principle of construction which requires a court to try to give effect to all words in a contract so as to avoid any redundancy (AFC Holdings Pty Ltd v Shiprock Holdings Pty Ltd (2010) 15 BPR 28,199; [2010] NSWSC 985 at [13]). But in my view the weight of this principle depends very much upon the circumstances of the case. Dixon J once said that "arguments of construction founded on tautology or redundancy are never strong" (Teele v Federal Commissioner of Taxation (1940) 63 CLR 201; [1940] HCA 3 at 207). In a contract of the present type, it is common to find a multiplicity of overlapping provisions, a technique described by Hoffman J (as his Lordship then was) as the draftsman's effort to "obliterate the conceptual target" (Tea Trade Properties Ltd v CIN Properties Ltd [1990] 1 EGLR 155 at 158). An argument that an instrument must be construed so as to give every part of it separate and independent work to do is at its weakest in the case of such a contract.
I think the presence of the words "in the case of the vendor or the purchaser" in sub-clause 33.2 is readily explained by looking at the other sub-clauses, 33.1 and 33.3. In both of those other sub-clauses (cl 33.1 dealing with bankruptcy and cl 33.3 dealing with company liquidation and other forms of administration) the sub-clause provides for rescission only when it is the vendor who is affected, and provides for a different consequence when it is the purchaser.
To my mind, the wording of sub-clause 33.2 was designed to emphasise that in the case of death or mental illness the consequence would be the same for both the affected party and the other party. The wording introduces an element of redundancy, but not ambiguity. Rather, I think it positively reinforces the ordinary meaning which the words "either party" would bear.
Furthermore, the reference in cl 33.2 to "either party" fits naturally in apposition to the "other party" referred to later in the clause as the recipient of the notice of rescission. If, as the argument for Mr Fussell requires, "either" were read as "the other", the result would be clumsy and confusing. I think this reinforces the view that "either party" in cl 33.2 means what it says.
I do not think that the fact that cl 33.2 refers expressly to service of the notice of rescission on the solicitor for the other party, but not service by a solicitor or anyone else on behalf of the party who has died or become mentally ill, makes any difference. Clause 33.2 is not well integrated with the printed terms of the contract. Clause 19.1, which is picked up and made applicable by cl 33.2, itself provides a mechanism for service of a notice of rescission. Clause 20.6.3 provided for a document to be "served" by being served on a party's solicitor. Clause 33.2 could readily have been drafted without mentioning the sending of a rescission notice at all. It would also have been readily possible to use the defined term "served" rather than the word "forwarded". If there was some apparent point to the variation in language one might conclude that it was deliberate and construe the clause accordingly; but I can see no point to the variation and counsel did not suggest one.
In any event the words of cl 33.2 do not, in my view, carry the implication that if one party to the contract dies or becomes mentally ill, only the other party may rescind. At most, they carry the implication that the rescission notice cannot be given on behalf of a dead or mentally ill party by that party's solicitor. But the question is whether a duly authorised legal personal representative may give the notice and I see no implication to suggest that such a person cannot. As discussed in more detail at [284] below, the usual implication would be that a reference to the party would include that party's legal personal representative. Ultimately, I did not understand counsel for Mr Fussell to contend that the contract displaced that implication; indeed, Mr Fussell's whole case is that he is entitled to obtain specific performance against Ms Deigan now that she has been appointed the legal personal representative of Mr Lockrey.
Counsel for Mr Fussell also relied on a number of authorities in support of their construction. I agree with counsel for Ms Deigan that these authorities are not helpful. In Karfoal Pty Ltd v Lorence (2002) 11 BPR 20,129; [2002] NSWSC 284, the clause in dispute gave a right to rescind to the "other" party, not "either" party (at [3]). The other two authorities, Brennan v O'Meara (2009) 14 BPR 27,441; [2009] NSWSC 1374 and Coppa v Barnett [2012] NSWSC 490, are not relevant because they address different issues.
Textual considerations thus point to a construction that entitles either party to rescind the contract in the event of death. If recourse to the surrounding circumstances is necessary, they only support this conclusion. Part of the consideration of the contract of sale was the grant of the life estate. In the event of Mr Lockrey's death, it would be in the interests of his estate to have the option to rescind the contract because the life estate ceases to exist on Mr Lockrey's death. This has the consequence of destroying a significant part of the consideration under the contract of sale.
So far as the lease is concerned, it is true that cll 37.7 and 51.9 of the contract expressly incorporate obligations under the lease so as to make performance under the lease a term of the contract of sale. But it goes too far to suggest the lease can be seen as some form of ownership or security as submitted by counsel for Mr Fussell. It was a formal commercial lease agreement between parties who were represented on both sides by solicitors. There is nothing in it to suggest that the parties intended it to operate otherwise than in accordance with its terms. The context therefore does not assist in giving the plain words in cl 33.2 any meaning other than that described above.
I therefore conclude that, as a matter of construction, the right to rescind the contract under special condition 33.2 extended, upon his death, to Mr Lockrey's legal personal representative.

[19]

Rectification

I have set out at [57]-[83] above the evidence given by Mr Fussell concerning his dealings with Mr Lockrey prior to entry into the contract, and the advice he allegedly received from his solicitor that there was no entitlement to terminate the contract in the event of Mr Lockrey's death. Mr Fussell claims that his intention was always that he would be entitled to go into occupation and then complete the contract, even if Mr Lockrey did not survive the five year period allowed for settlement. He claims that the inclusion of cl 33.2 was therefore a mistake from his point of view. His contention is that the Court should infer that Mr Lockrey had the same intention as he did and was accordingly labouring under the same mistake, or at least, that Mr Lockrey knew, or ought to have known, of Mr Fussell's mistake.
The evidence of mistake must be "clear and convincing" before the Court will rectify a written contract (Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 at [182]), especially one which has been negotiated through solicitors (Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 at [461]). Because Mr Lockrey has died, any finding as to his intention can only be made by inference, and the Court will scrutinise evidence of statements and attitudes attributed to Mr Lockrey with special care: Eggins v Robinson [2000] NSWCA 61 at [26] and the authorities cited.
The discussions between Mr Fussell and Mr Lockrey took place in a context which makes rectification on the basis of common mistake most unlikely. The discussions did not purport to be exhaustive or immediately binding. Both parties would have appreciated that the agreement would later be recorded in a formal written contract which would be prepared by solicitors. They would have contemplated that the formal contract would contain numerous detailed provisions dealing with the mechanism of the sale. They would also have understood that until the contract reached its final signed form it would be open to either party to change his negotiating position or to withdraw entirely.
I think this is reinforced in Mr Fussell's case by what he said to his solicitor, Mr Hanrahan, in his email of 2 May (quoted at [68] above). Mr Fussell wanted to get the contract signed before Mr Lockrey went overseas. Mr Fussell was keen to proceed because he recognised that until and unless the agreement was reduced to final written form and signed, there was a possibility that Mr Lockrey might die. Equally it must have been obvious that Mr Lockrey might change his mind.
By the time Mr Fussell sent the email, he had probably already agreed to the change to the structure of the proposed arrangement which replaced the earlier terms arrangement with a separate lease to BSTC. If not, he would have been told of the change by Mr Hanrahan shortly afterwards and he raised no objection. Whatever he may have thought before, he cannot reasonably have believed at this point that his earlier discussions with Mr Lockrey still represented the agreed terms for the transaction.
I am not satisfied that Mr Fussell's account of his conversations with Mr Lockrey leading up to entry into the contract is complete or accurate. I have already rejected Mr Fussell's evidence that the change in the transaction from a terms contract to a sale contract coupled with a lease was agreed in a meeting with Ms Deigan. It must have been agreed at some other discussion between Mr Fussell and Mr Lockrey which is not mentioned in Mr Fussell's affidavit. This is not the only finding I have made concerning an inaccuracy in Mr Fussell's evidence. I am not satisfied that his evidence overall is necessarily reliable.
In any event, on Mr Fussell's own concession, the question of what would happen if one or other of the parties to the contract died was never discussed between him and Mr Lockrey. Even if I were to accept Mr Fussell's version of the discussions as accurate so far as they go, there is nothing in them which, to my mind, carries any necessary implication that the contract could not be terminated if Mr Lockrey died before completion.
Mr Lockrey may, as Mr Fussell's account suggests, have contemplated that the contract would be completed for Mrs Lockrey's benefit, but this is not at all the same thing as saying it would necessarily happen. Especially is this so because Mr Lockrey's relationship with Mrs Lockrey had been a volatile one, as Mr Fussell knew from what Mr Lockrey had told him.
Counsel for Mr Fussell submitted that cl 33 should be rectified by replacing the words "either party" which appears after the words "in the case of the vendor or the purchaser" in cl 33.2 with the words "the other party". Alternatively, counsel submitted that the contract should be rectified by deleting cl 33.2 in its entirety. But there would be no justification for supposing that the parties really intended there should be a provision dealing with rescission in the event of death but in a different form from that which appears in cl 33.2. Still less is there any justification for supposing that the inclusion of cl 33.2 was a mistake, but the inclusion of cl 33.1 (concerning bankruptcy) and cl 33.3 (concerning insolvency) was not. The forms of rectification sought only underline the fact that there is no evidence of any common intention of the parties with respect to rescission outside the terms of the contract itself.
Mr Fussell's evidence was not limited to dealings with Mr Lockrey. He claimed his solicitor told him that there was nothing in the contract about termination in the event of Mr Lockrey's death (see [81] above). But I am sceptical about this. The variation in Mr Fussell's story under cross-examination (see [82] above) did not inspire confidence. Moreover the claim is a self-serving one which, if true, would mean that Mr Hanrahan had made an egregious mistake. Mr Hanrahan did not give evidence. Counsel for Mr Fussell submitted that it was hardly surprising that Mr Hanrahan had not been called to give evidence which could expose him to liability for professional negligence, but I find this submission somewhat glib.
There is no evidence that Mr Fussell has ever made any claim against Mr Hanrahan. And even if affidavit evidence could not have been obtained from Mr Hanrahan, there seems no reason why Mr Hanrahan's file could not have been subpoenaed; but if it was subpoenaed, no documents from the file were tendered before me. In the circumstances, I do not regard Mr Fussell's evidence, unsupported by any contemporaneous documentary material, as sufficiently persuasive to be satisfied that Mr Hanrahan gave him advice in the terms he now claims.
As I have mentioned, the evidence does not identify when cl 33 was introduced into the draft contract. Nor does the evidence identify whether specific advice was given to Mr Lockrey on the terms of the clause. But these are problems for Mr Fussell's case, not Ms Deigan's. It frequently happens that a solicitor introduces a clause into a draft contract without giving a full explanation to the client of the way in which the clause will work. This does not mean that the operation of the clause is contrary to the client's intention; in such a case the client's intention is properly understood as being to contract on the terms prepared by the solicitor. Only if the client has a specific intention which is contrary to the effect of the relevant clause could any question of rectification arise.
For all the Court knows, Mr Lockrey read cl 33.2 before signing the contract and understood it to operate in accordance with the construction which the Court has now determined it properly bears. Even if, as Mr Fussell claimed, Mr Lockrey did not read the contract on the day he signed it, that does not mean that cl 33.2 was contrary to his intention. It is equally, if not more, probable that Mr Lockrey was happy to leave the formulation of the contract to Ms Deigan, and not to think about the issue himself at all. I see no reason whatever to infer that Mr Lockrey intended that if one of the parties to the contract died, only the other could rescind it. Still less is there "clear and convincing" proof that that is what he intended.
It follows that if, contrary to my view, the evidence established there was a mistake by Mr Fussell, it could only have been a unilateral one. And there is in my view no evidence whatever that if Mr Fussell was labouring under a mistaken view of the contract, Mr Lockrey was, or should have been, aware of it. Mr Fussell's claim for rectification fails.

[20]

May notice of rescission: estoppel

The next argument for Mr Fussell was based on an alleged estoppel by convention. Counsel argued that both Mr Lockrey and Mr Fussell adopted a "conventional basis of dealing" reflecting a common assumption, upon signing the contract, that "the property was effectively Mr Fussell's and … Mr Lockrey's wife would be unable to interfere with Mr Fussell's rights" under the contract.
Counsel relied for the "conventional basis of dealing" on the conduct of Mr Fussell in going into occupation and using the property for the purposes of Blue Star's business, and Mr Lockrey's evident knowledge of, and acquiescence, in that course. Counsel also relied on statements attributed to Mr Lockrey by Mr Fussell that the property "belonged to" Mr Fussell.
The difficulty with these submissions is the ambiguity of the conduct and representations relied upon. Mr Fussell must establish a "conventional basis of dealing" involving a departure from the express terms of the contract (which, ex hypothesi, permitted a rescission notice to be issued in the event of Mr Lockrey's death). Estoppel by convention, like other forms of estoppel by conduct, is a type of estoppel by representation. To found an estoppel by representation, the representation must be clear: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [35], citing Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 at 435-436; see also Ell v Ell (2015) 14 ASTLR 32 [2015] NSWCA 38 at [33], citing with approval Waterman v Gerling Australia Insurance Co Pty Ltd (2005) 194 FLR 419; [2005] NSWSC 1066 at [91]. Equally, an estoppel by convention in a case such as the present requires that the parties' dealings involve a mutually clear departure from the terms of the contract.
In my view, no such departure from the terms of the contract is established on the evidence. The conduct of Mr Fussell in going into possession and operating his business from the property, and Mr Lockrey's acquiescence in that course, is not in any way inconsistent with the terms of the contract. It was provided for by the lease, which was expressly contemplated in the contract. Even if Mr Lockrey did say to Mr Fussell that the property belonged to Mr Fussell (which I do not consider has been satisfactorily proved), he cannot have thought, and cannot reasonably have been understood by Mr Fussell to have meant, that Mr Fussell would be permitted to complete the contract irrespective of any circumstances which would otherwise give rise to rescission or termination. Mr Fussell accepted in cross-examination that he understood it in this sense.
Mr Fussell claimed that he acted to his detriment on the "conventional basis of dealing" in a number of different ways. First, Mr Fussell claimed that he would not have entered into the purchase contract at all, and would not have caused BSTC to enter into the lease, if he had realised that the contract was liable to be rescinded if Mr Lockrey died before completion. In particular, Mr Fussell claimed that he was never interested in the lease simply on its own terms but only as part of an arrangement under which he would proceed to purchase. But Mr Fussell was clearly keen to proceed with the transaction. On his own account, he lacked the funds to proceed with the immediate purchase of the property. He must have appreciated that the contract and lease were separate obligations and that there could be circumstances in which he might prove unable to complete the contract, in which event BSTC would be left to meet its obligations under the lease. In his affidavit, Mr Fussell claimed the annual rent for the property was much higher than the market rate for rental property in that area and that he only considered it worthwhile to rent the premises between the period of the exchange and the settlement date of the contract as an investment towards the property. Even if Mr Fussell was correct in his assertion that the rent specified in the lease was above the corresponding market rate (and there was no independent evidence of this) that was something he had to accept he had to take if he wished to obtain the benefit of the deferred settlement which was offered on the contract.
Mr Fussell also claimed that he would not have undertaken the "improvements" to the property if he had not thought that ultimately he would reap the benefit of those "improvements" by proceeding to purchase. Mr Fussell presented his dealings with Mr Lockrey as being based on friendship and a shared plan for the future of the property rather than a business relationship based on the terms of the contract and the lease. But I think it is clear that, however friendly Mr Fussell was with Mr Lockrey, he appreciated that the relationship so far as the property was concerned was one of vendor and purchaser and lessor and (in BSTC's case) lessee. The letter Mr Fussell wrote to Mr Wilding to get him to vacate referred to the "principle [sic] authorised tenant" underlines this. So does the insurance letter which referred to BSTC's obligations under the lease. The proposed agreements concerning the tidying up of the property and the occupation of the "House" after Mr Lockrey's death, although unprofessionally drafted, both exhibited an understanding on Mr Fussell's part of a need to define and to document the parties' legal obligations towards each other. The latter proposed agreement expressly took the form of an amendment of the lease and must have been intended by Mr Lockrey to create rights for BSTC.
Furthermore, Mr Fussell must have understood in August 2016 from the solicitors' correspondence that Mr Lockrey (or Mrs Lockrey, if by that stage she was directing his affairs) could require him and BSTC to comply strictly with their obligations and they were at risk of the contract being terminated if they did not. No doubt that is why Mr Fussell made efforts to reduce the rental arrears between August 2016 and May 2017. For his part, Mr Fussell took the position in the solicitors' correspondence that he was standing on his rights under the contract and would not pay Mr Lockrey more than he was contractually obliged to pay. In my view, Mr Fussell must have appreciated when he undertook the "improvements" that he (or more accurately BSTC) was taking the risk that he might not ultimately proceed to purchase if he or BSTC were unable to comply with their contractual obligations.
Moreover, I doubt that the works in question could truly be said to have constituted improvements to the property, in the sense of appreciably increasing its value. In any event, the expenses associated with the improvements were paid by BSTC (see at [97] above). It may be that Mr Fussell provided some of his own labour, but as the expenses were paid by BSTC, presumably on the basis that the works were associated with BSTC's business, that labour must be seen as provided by Mr Fussell on behalf of BSTC. I am therefore not satisfied that any substantial detriment was incurred by Mr Fussell personally in his capacity as purchaser.
For these reasons, I am not satisfied there was any conventional basis of dealing as alleged, or that Mr Fussell suffered any relevant detriment. The estoppel claim fails.

[21]

May notice of rescission: breach by Mr Lockrey

Counsel for Mr Fussell next relied on the principle that a party is not entitled to take advantage of his or her wrong. Counsel submitted that when Ms Deigan issued the notice on 18 May (assuming it to be valid) she was taking advantage of a prior breach of contract on part of Mr Lockrey or his estate.
Counsel for Mr Fussell submitted at one point that the transfer as executed by Mr Lockrey was defective in referring to a life estate over the whole of the property and Mr Lockrey had been at fault in failing to correct it after the issue was raised in August 2016. Mr Lockrey, of course, could hardly be blamed for having executed the transfer in the form in which he did. That form was prescribed by the contract and had in fact been prepared by Mr Hanrahan on Mr Fussell's behalf. I do not think that the events of August 2016 made any relevant difference.
Mr Lockrey's obligation under the contract (cl 16.3 of the standard form) was to cause title to the property to pass on completion. This required him to provide a transfer in registrable form at that point. It was the responsibility of Mr Fussell as purchaser to submit the necessary transfer (see cl 4.1 at [34] above). Had Mr Brown considered that the transfer previously signed by Mr Lockrey was inadequate, it would have been his responsibility on Mr Fussell's behalf to submit a fresh transfer prior to completion. But he did not do so and the question raised by him in correspondence about the adequacy of the transfer was never put to the test. In any event, Mr Lockrey had no obligation to complete in August 2016 so no question of breach could arise at that point.
Counsel for Mr Fussell pointed to the provisions of the contract which required completion to take place by 10 May 2017 (cl 37.2, quoted at [21]-[22] above) and contended that by not completing on that day, Mr Lockrey was in breach. By way of fall-back counsel contended that Mr Brown's letter of 16 May made it clear that Mr Fussell wanted to proceed to settlement and failure to complete from that point onwards was a breach.
Although the contract provided that the completion date was 10 May, it contemplated the possibility of completion actually taking place later. Clause 33 provided that the right of rescission might be exercised prior to completion, not prior to the completion date. It follows, in my view, that the question of Mr Lockrey taking advantage of his own wrong could only arise if the notice was issued after the time for Mr Lockrey to complete had already passed.
It is true that the contract cast an obligation on both parties to complete on 10 May. But in my view that obligation must be seen in the context of the need for co-operation from both parties to organise the settlement. In Amaya v Estate Property Holdings Pty Ltd (2010) 14 BPR 27,243; [2010] NSWSC 32 White J (as his Honour then was) said (at [66]) that normal conveyancing practice requires the purchaser to arrange a time for settlement, agree upon adjustments and ascertain how cheques are to be made out. His Honour referred to the earlier judgment of Cohen J in Blacktown City Council v Fitzgerald (1990) 6 BPR 13,409. That judgment had been based on evidence as to conveyancing practice from an independent expert solicitor and also from the solicitors involved in the transaction. There was no equivalent evidence in this case, but I do not think that matters. There does not appear to have been any such evidence before White J. I think that I can take his Honour's judgment as an indication that it has been sufficiently established to be a matter of judicial notice that it is for the purchaser to initiate settlement. Furthermore, Mr Brown's conduct in seeking in his letter of 16 May 2017 to "book in settlement" is direct evidence of the practice being followed in this case.
In circumstances where Mr Fussell was making no attempt himself to fix the date and proceed to completion, I think it would be unreal to see Mr Lockrey as being in breach of the contract simply by taking no action in the face of Mr Fussell's inaction. Mr Lockrey was entitled to press for completion but was not obliged to do so.
I think cl 38 (set out at [24] above), which obliged Mr Fussell to pay interest in the event of any delay in completion, reinforces this view. If there was a delay in completion because the purchaser failed to initiate settlement, it would be absurd if the purchaser could resist the payment of interest on the ground that the vendor was taking advantage of his own wrong.
It follows from this analysis that there can be no question of breach on the part of Mr Lockrey or his estate before Mr Brown's letter of 16 May. Was the position different in the two days which elapsed between that letter and the date of issue of the notice?
Mr Brown's email of 16 May enquired about booking in a time for settlement but did not nominate a date. The transfer previously signed by Mr Lockrey had included a transfer to himself by way of life estate (and in erroneous terms, as Mr Brown had himself recognised the previous year). The email expressed an expectation that the contract could be completed on the basis of that transfer but there was no evidence or submissions concerning conveyancing practice on this issue before me, and I suspect that when Mr Brown wrote the email he had not fully thought the issue through and was waiting to see what Ms Deigan might say about it. On any view, the letter was hardly definitive. It did not exclude the possibility that a grant of representation, and possibly a fresh transfer as well, would be required.
No doubt the vendor's obligation of co-operation would have required the nomination of a date for settlement within a reasonable period of time of receiving Mr Brown's letter. But, on the view I take, it must be shown that this would have required completion to be fixed on a date before the notice of rescission was issued by Ms Deigan on 18 May.
There was no evidence before me of conveyancing practice which would assist in determining what a reasonable time limit would have been, in the circumstances, to nominate for the date of completion. Counsel did not address any submissions to this issue. In the absence of evidence I do not think it could have been less than the fourteen day period allowed under cl 37.3 (quoted at [23] above) for a vendor's notice to complete. Accordingly, I am not satisfied that there was any breach on the part of Mr Lockrey or his estate up to 18 May which would invalidate the exercise of the estate's right of rescission.

[23]

May notice of rescission: relief against forfeiture

Finally, counsel for Mr Fussell contended he was entitled to specific performance, even if the termination of the contract was legally valid, on the basis of equity's jurisdiction to grant relief against forfeiture. The interest which was said to enliven the jurisdiction was put in two ways. First, it was contended that Mr Fussell would lose the benefit of the "improvements" he had made to the property between 2012 and 2017. Secondly, the interest was identified as loss of the benefit of the contract itself.
The argument for Mr Fussell was not based on the established equitable jurisdiction to relieve against the forfeiture of a leasehold interest. It could not have been. The lease from Mr Lockrey to BSTC was unaffected by the termination of the contract and continued until the term of the lease expired in May 2018. No doubt for this reason, BSTC was not made a party to these proceedings. As I have already found, the "improvements" were effected by BSTC not Mr Fussell, and any claim for relief against forfeiture on account of those "improvements" must fail for that reason alone.
In any event, I do not think that either of Mr Fussell's forfeiture arguments can overcome the difficulties created for them by Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57. The power to rescind under cl 33.2 cannot be seen as being in substance a security for the performance for some other, primary, stipulation (cf Tanwar at [33]-[34], [55]). This leaves the question of whether the exercise of the right of rescission can be characterised as some sort of "fraud, accident, mistake or surprise" within the meaning of the authorities (see Tanwar at [58]-[67]). All Ms Deigan sought to do was to exercise a right to rescind provided for in the contract. The right in question arose on Mr Lockrey's death, and had nothing to do with any conduct of Mr Fussell. No question of mistake on Mr Fussell's part arose. Mr Lockrey had not done anything which would allow the exercise of the power to be characterised as surprise to, or fraud against, Mr Fussell (see Tanwar at [61]). And no question of accident arose because the exercise of the power was plainly foreseeable (cf Tanwar at [63]-[67]).
For these reasons, the arguments for Mr Fussell based on forfeiture fail.

[24]

May notice of rescission: authority to issue notice

The final argument on behalf of Mr Fussell concerning the May notice of rescission was that even if it had been open to issue a notice on behalf of Mr Lockrey's estate rescinding the contract under cl 33.2, Ms Deigan lacked authority to do so, not having obtained probate at that date. In response, counsel for Ms Deigan argued that Ms Deigan, as executrix, had contractual authority from the date of Mr Lockrey's death. Alternatively, upon the subsequent grant of probate, Ms Deigan had authority which related back to Mr Lockrey's death so as to give her retrospective authority to issue the notice.
Although the notice of rescission was signed by Ms Deigan, it was signed by her on behalf of CLS Legal as the solicitors for Mr Lockrey. Strictly speaking, the notice was issued by CLS Legal not by Ms Deigan. The notice therefore did not purport to exercise any power of Ms Deigan as executor named in Mr Lockrey's will. Indeed, at the time the notice was issued, Ms Deigan had not even advised Mr Fussell or Mr Brown that she was named as executrix under Mr Lockrey's 2013 will. But no point was taken about this in argument on behalf of Mr Fussell.
In Byers v Overton Investments Pty Ltd (2000) 106 FCR 268; [2000] FCA 1761, Emmett J (as his Honour then was) traced the ways in which title to personal and real property passed to executors and administrators at common law. First discussing the position of an executor, his Honour said (at [12]-[14]): Under the general law, the real estate of a deceased person did not vest in the legal personal representative. A will operated as a conveyance by way of appointment and the real estate passed immediately to the devisee or trustee. In the case of intestacy, real estate passed directly to the heir at law. Personal estate, however, was different. Under the general law, the devolution of personal estate of a deceased person depended upon whether the deceased appointed an executor by a valid will. An executor took his title to the personal estate from the will of his testator, not from the probate of the will. The personal estate including all rights of action vested in the executor immediately on the death of the testator. The consequence was that the executor could institute an action in the character of the executor before probate. Nevertheless, an executor could not assert his title without production of probate as evidence of the title. The probate was operative as the authenticated evidence of the executor's title, but not as the foundation of it - see, generally, Williams Law of Executors and Administrators 10th ed. 1904 at pp. 213-214, 467; Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603 at 608-9.
His Honour then contrasted this with the position of an administrator, stating (at [15]-[18]): On the other hand, an administrator derived title to personal estate wholly from the grant of letters of administration. No cause of action could accrue to an administrator until the grant of letters of administration. The office of administrator is a statutory creation. An administrator derived his powers from the appointment by an ecclesiastical tribunal. In early times, when a person died intestate, the King as parens patriae, took the goods of the intestate and used them for the payment of his debts, of his burial expenses, and for the advancement of his wife and children, or if he had none, then for his blood relations. That prerogative was, at first, exercised by the King's ministers of justice in ordinary court and even by certain lords of manors. The functions of the Crown were later committed to the bishop of the diocese in which the goods of the intestate were found. The bishop, acting in that capacity, was referred to as the Ordinary, who was described as: "he that hath Ordinary jurisdiction in causes ecclesiastical, immediate to the King and his courts of common law, for the better execution of justice, as the Bishop or any other that hath exempt and immediate jurisdiction in causes ecclesiastical." Thus, the Ordinary was the ecclesiastical judge, normally the bishop, of the place where the death of an intestate occurred. In that capacity, the Ordinary undertook the administration of the intestate estate. That jurisdiction was additional to the jurisdiction of the Ordinary in relation to wills - see Hastings and Weir Probate Law and Practice 2nd ed. 1948 at p. 16. Prior to the reign of Edward I, the Ordinary had no right to sue for debts due to the intestate nor could he institute any legal proceedings to recover possession of goods not taken by him, nor was he under any liability to be sued by creditors of the deceased estate. The effect of legislation in 1357 (31 Ed. III. St. I, c. 11 (Administration Upon Intestacy Act) (Imp)) was to take away from the Ordinary the duties of administering the intestate's goods. Instead, he was required to depute "the next and more lawful friends of the dead person intestate to administer his goods". Such deputy, when appointed, was to have the same right to demand and recover debts due to the estate of the deceased as an executor would have had. Following 21 Hen. VIII c. 5 (Probate and Administration Act) 1529 (Imp) the Ordinary was bound to grant the administration of the goods of the deceased to the widow or to his next of kin, or to both. From that time onwards, the Ordinary's function seems to have been to grant probate or letters of administration and to supervise the accounts of executors and administrators but to take no part in the control or disposition of the goods of the intestate. The administrator, when appointed, was entitled to sue for and recover any debts due to the deceased. However, the Church had no right or interest of any kind in the property of deceased persons, beyond the right of jurisdiction, and of granting administration and the right of possession for that purpose - see generally Ex parte Public Trustee; Re Birch (1951) 51 SR (NSW) 345 at 347-8.
The rule that an executor's title ran from the date of death had some limitations. One was its lack of mutuality. A third party could not bring proceedings against the executor prior to grant (at least unless the executor had in fact entered upon the administration of the estate: Douglas v Forrest (1828) 4 Bing 686; 130 ER 933 at 704), whereas the executor was entitled to bring proceedings against the third party. Furthermore, where monies were owing to the estate under a contract made by the deceased, the executor named in the will could give a valid receipt if the other party chose to pay, but could not compel the other party to pay before probate was granted: Newton v Metropolitan Railway Co (1861) 1 Dr & Sm 583; 62 ER 501; Re Stevens [1897] 1 Ch 422 at 430.
The requirement that an executor's title be proved by producing the probate was, on the face of it, a rule of evidence. But because this was the only way in which the executor's title could be proved, it operated substantively, in effect qualifying the general rule that the executor's title operated from the date of death. Under the old system of common law pleading, the executor was required in his declaration to give an undertaking to produce the probate in court ("profert") where the defendant could, before proceeding further, require inspection ("oyer"). Thus, while the executor could issue a writ without having obtained probate, he could not insist on proceeding further until probate had been obtained.
With the abolition of the old system of pleading, the courts adopted the practice of staying proceedings commenced by an executor until probate was granted: Webb v Adkins (1854) 14 CB 401; 139 ER 165; Tarn v The Commercial Banking Company of Sydney (1884) 12 QBD 294. For practical purposes, this was barely any different from requiring the executor to wait until the grant of probate to bring proceedings. Indeed, in Webb v Adkins Jervis CJ went so far as to describe a plaintiff who had commenced proceedings as executor before grant, apparently in accordance with the common law rule, as having "abused the process of the court by calling himself executor when he in fact is not so" (at 407).
The overall effect was to protect the position of a party faced with a claim made by an executor named in a will who might or might not ultimately obtain probate. But the effect was achieved indirectly by procedural means, in a fashion reminiscent of fictions in the medieval law.
A doctrine of relation back developed in the case of an administrator, but without the circumlocution involved in the rule concerning executors. It is sufficient to refer to three aspects to the doctrine. The first was that an administrator was entitled to maintain an action for trespass to land or goods owned by the deceased taking place in the interval between the deceased's death and the grant of administration. This was decided in Tharpe v Stallwood (1843) 5 Man & G 760; 134 ER 766 at 772-775. The reason for the rule was pragmatic: during that interval, there was no one available to represent the deceased's estate and wrongs to the deceased's property could not otherwise be vindicated. But the rule was limited in effect. It did not allow the putative administrator to commence proceedings for trespass before the grant of administration; it simply meant that upon administration being granted, the administrator could bring an action for a trespass which had taken place during the interval between death and the grant of administration.
The second rule was that a contract made by a putative administrator concerning property of the deceased could be enforced against the estate, provided that the making of the contract had been in the estate's interest. This rule is discussed in Nichol v Pettycrew (1969) 7 DLR (3d) 103 at [26]-[29]; and Mills v Anderson [1984] QB 704 at 709-710.
Again, this rule was quite limited in its effect. The third party would of course be able to enforce the contract as a matter of contract law in any event against the administrator in his personal capacity. All the rule did was to ensure that it could be enforced also in a representative capacity, so that, for instance, specific performance could be obtained of a contract for the sale of an asset of the deceased rather than simply obtaining damages against the administrator in his personal capacity.
The third rule was that a contract made on behalf of another person on behalf of the estate could also be enforced by the putative administrator after the grant of administration: Foster v Bates (1843) 12 M & W 226; 152 ER 1180 at 233.
Similarly, in a case where enforcement was sought on behalf of the estate, there would have been at least a purported contract with the third party and the effect of the rule was simply to allow the administrator, once appointed, to bring his own action to enforce that contract.

[25]

Legislation

The Probate and Administration Act 1898 (NSW), s 44, provides: (1) Upon the grant of probate of the will or administration of the estate of any person dying after the passing of this Act, all real and personal estate which any such person dies seised or possessed of or entitled to in New South Wales, shall as from the death of such person pass to and become vested in the executor to whom probate has been granted or administrator for all the person's estate and interest therein in the manner following, that is to say: (a) On testacy in the executor or administrator with the will annexed. (b) On intestacy in the administrator. (c) On partial intestacy in the executor or administrator with the will annexed.
Section 44 must be understood in conjunction with s 61 of the Act which provides: From and after the decease of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person's estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England.
Emmett J's summary in Byers, to which I have referred at [215]-[216] above, states the general law at the time English law was received in New South Wales (see G L Certoma, The Law of Succession (Lawbook Co, 4th ed, 2010) 6-15; see also Ex parte Public Trustee; Re Birch (1951) 51 SR (NSW) 345 at 347-349). Legislation later modified the general law position in several respects, culminating in ss 44 and 61, which were enacted in original form in the Wills, Probate and Administration Act 1898 (subsequently renamed the Probate and Administration Act 1898). Emmett J traced these developments in Byers (from [27]-[44]). It is clear that ss 44 and 61 were intended to assimilate the position of executor with respect to the vesting of property in the interval between the testator's death and the grant of probate to that of an administrator: Byers at [55] (see also [233], [247], [251]-[252] below). The apparent purpose of this modification was to address any lacuna in the title to property during this period. As Emmett J pointed out (at [28]-[31]), it may be doubted whether the modification was actually necessary. Be that as it may, the intent is clear and effect must be given to it.

[26]

Tenancy cases

Following the introduction of rent control legislation, both in England and in Australia, issues arose as to the operation of statutorily protected leasehold interests in the period after the death of the tenant. One issue was the extent to which the person in whom the estate vested before the grant of probate or administration (in this State, the Public Trustee for both executors and administrators; in England, the President of the Probate, Divorce and Admiralty Division, in the case of administrators) could be treated as subject to the deceased's contractual obligations, and entitled to exercise the deceased's contractual rights, in the interval. Initially it was suggested that the statutory title holder was a "bare repository" of the title and nothing more. But it came to be accepted, at least, that notice served on the statutory title holder was effective to terminate the lease. In Australia, this was confirmed by the High Court in Andrews v Hogan (1952) 86 CLR 223; [1952] HCA 37, although the reasoning of the different judges who sat diverged to some extent.
The relevant authorities on the role and status of the Public Trustee in the interval between death and the grant of probate, including the different judgments in Andrews, were thoroughly reviewed by Davies J in GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 at [20]-[54]. His Honour concluded that the Public Trustee was the proper defendant to possession proceedings commenced after the tenant's death and before the grant of probate (at [63]).
The tenancy cases have mainly been concerned with the effect of s 61 and the status of the Public Trustee. But some of them have also considered the question of relation back.
In The Daily Pty Ltd v White (1946) 63 WN (NSW) 262, the plaintiff company leased certain premises to a testator on a weekly tenancy. Following the testator's death, a man called Greig was appointed as executor and sole beneficiary under the testator's will. Before the grant of probate, Greig purported to assign the weekly tenancy to the defendant. At the time of the hearing, an application had been made for the grant of probate to Greig, which had not been determined. The plaintiff moved for summary judgment by way of possession against the defendant. One of the arguments for the defendant was that, if Greig obtained probate, his title would relate back so as to validate the assignment.
Herron J (as his Honour then was) held the effect of ss 44 and 61 was that legal title to the weekly tenancy vested in the Public Trustee. His Honour said (at 263): By the combined effect of ss. 44 and 61 an executor in New South Wales is in the same position between the date of a testator's death and the grant of probate as an administrator in England. He is not possessed of the legal estate in the deceased's property, and he therefore cannot dispose of it. He may purport to do so and if subsequently probate is granted s. 44 will render valid such transactions when it is shown that they are for the benefit of the estate, or have been made in due course of administration - Halsbury, 2nd ed., vol. 14, p. 176.
Herron J continued (at 263-264): In the present case, therefore, Greig had no estate in the tenancy to dispose of on 4th September, and the assignment is inoperative. It cannot be said to be a nullity because of its possible validation on a grant of probate.
In speaking of the "possible validation" of the assignment, his Honour must have been thinking of s 44. He said that if this had been the only point involved in the application, he would have considered further as to whether or not it was a sufficient reason to refuse summary judgment. But his Honour concluded that it was not necessary to do so because the summary judgment application failed for another reason.
In Fred Long & Son Limited v Burgess [1950] 1 KB 115, Mrs Burgess held a tenancy over a property where she lived with her two sons. She died intestate and the landlord company served a notice to quit. The notice was served on the President of the Probate Divorce and Admiralty Division of the High Court of Justice under the Administration of Estates Act 1925 (UK), s 9, which was in similar terms to s 61. This, it was later accepted, had the effect of terminating the lease.
Mrs Burgess' sons remained in occupation after Mrs Burgess' death and the service of the notice to quit. The plaintiff company commenced possession proceedings. The proceedings were adjourned to allow one of the sons to obtain letters of administration of Mrs Burgess' estate, which he did. The relevant rent control legislation afforded statutory protection upon termination of a lease to "any person from time to time deriving title under the lessor" (Increase of Rent and Mortgage Interest (Restrictions) Act 1920 (UK), s 12(1)(f)). It was argued for the administrator that he was entitled to statutory protection because, by the doctrine of relation back, on the grant of administration he retrospectively succeeded to Mrs Burgess' lease at the date of her death. The argument succeeded at first instance but was rejected by the English Court of Appeal. Bucknill LJ said (at 121): …it seems to me that it would be unjust to hold that a subsequent grant of administration brought the dead contract to life. The circumstances under which the grant was made in this case vividly illustrate the sort of injustice which the extension of the doctrine to this kind of case might do.
Asquith LJ said (at 123): In my view … the plaintiff landlords are right, and the appeal should be allowed. It seems to me that there is much force in the contentions advanced for the landlords that the doctrine "of relation back" must not be applied save to protect the estate from wrongful injury occurring in the interval (of which in this case there was none); that a title cannot relate back if it is a title to something which has perished or been extinguished without fault or wrong on the part of anyone in the interval; that the principle of "relation back" cannot be applied so as to invalidate interests lawfully acquired in the interval; and that to apply it in circumstances such as those of the present case leaves the landlord, it may be for years, in a position of intolerable doubt as to his rights; for instance, whether or not he can safety re-enter and deal with the property.
In Ex parte Callan; re Smith [1968] 1 NSWR 443 the deceased (Mrs Vermeesch) was the landlord of a tenancy from week to week. After the landlord's death, and before the grant of probate, the executor named in her will, Smith, served the tenant with a notice to quit. Smith then authorised Robinson to lay on information against the tenant before a magistrate, which was the means of initiating possession proceedings at the time. Probate was subsequently granted, and the magistrate made an order for possession. The tenant successfully applied to this Court (constituted by Isaacs J) for prohibition.
One of the arguments for the tenant was that, at the time Smith issued the notice to produce and authorised Robinson to lay the information he had no entitlement to do so, not having obtained probate. Isaacs J began by considering the authorities on the position of the Public Trustee between the date of death and the date of grant. His Honour concluded (at 447): The legal estate of the landlord vests on his death and until probate in the Public Trustee and if it be necessary for the purposes of administration before grant to give a notice to quit to a tenant then only the Public Trustee is in the situation to do this and no one else. Of course the Public Trustee might consider the authorizing of an agent or some other person including the executor-elect to give a notice to quit or lay the information but any such authority would have to be proved. In this case no such authority existed.
Isaacs J then considered the application of s 44. Quoting Viscount Simonds (eds), Halsbury's Laws of England (Butterworths, 3rd ed, 1964) vol 16, 135, he said (at 448): …the primary purpose of s. 44 was to provide an executor or administrator with the means of remedying injury done to the deceased's property between death and grant and this remedy has enabled executors and administrators to recover against persons who have wrongfully dealt with the deceased's estate in that interval. It has been held that it does not apply to disturb interests of other persons validly acquired in that period nor to restore to the executor or administrator title to something which has ceased to exist in that interval. The doctrine of relation back renders valid dispositions of the deceased's property by the executor and administrator prior to grant provided such are for the benefit of the estate or made in the due course of administration and a contract made before the grant may be enforced by the executor after grant; but it has been held that the doctrine of relation back in the case of an administrator does not validate as competent an action which was incompetent when the writ was issued: see Ingall v Moran [1944] 1 All ER 97; [1944] 1 KB 160 (CA); Hilton v Sutton Steam Laundry [1945] 2 All ER 425; [1946] KB 65 (CA) and Finnegan v Cementation Co. Ltd. [1953] 1 All ER 1130; [1953] 1 QB 688 (CA).
His Honour held that because the putative executor was not vested with the legal estate at the time of serving the notice it could not be validated by the statutory relation back provision. He said (at 449): Now here we are not dealing with a conveyance or other disposition for value to another of the deceased's real estate, but only a notice to a tenant to quit so as to terminate the tenancy. But as I have already held, the notice could not at that time have been given by the executor-elect on his own behalf as executor because he did not have the legal estate. If it was to be operative at all it could only have been given on behalf of the Public Trustee had he authorized the executor-elect to issue it. It could not have been given on behalf of the "Executor of the estate of Mrs Vermeesch" for no such person existed at that time. In my view the section does not validate in favour of the executor to whom probate is granted the giving of the notice to quit issued without authority presumably on behalf of the Public Trustee prior to grant nor the purported giving of authority to Robinson to lay the information or the laying of that information, both of which can only be assumed to have been likewise done purportedly on behalf of the Public Trustee and so they remain invalid.
Isaacs J went on to consider a separate condition of validity of the notice namely that it had to be "clear, unqualified, unequivocal, not subject to conditions expressed or applied which render its operation uncertain and it must be one upon which the tenant can act with certainty as to its meaning and effect". He said (at 449): Now as I have held that the notice was not and could not have been validly issued excepting by the Public Trustee (and possibly through his authorized agent) it appears to me to contain and convey the following matters, conditions and implications: (a) This notice to quit is issued before grant of probate. (b) At various stages this notice to quit might be invalid or valid according as to whether probate is or is not granted at those stages, viz before expiration of notice to quit, after that date and before laying of information, after laying of information and before hearing, after first hearing and before resumed date of hearing. (c) Probate may not ever even be applied for. The tenant will not of course be notified if and when probate is granted but will be obliged to make his own inquiries. (d) The executor named in the will will not of necessity be the executor to whom probate is ultimately granted. He may die beforehand, he may renounce, his estate might be sequestrated. (e) Probate of the will may even if applied for never be granted because: 1. invalidity of the will as to execution, witnesses, testamentary incapacity, etc; 2. revocation of the will by a later will, or 3. revocation of the will by its destruction with the appropriate intention resulting in an intestacy.
His Honour concluded that for these reasons the notice was invalid for uncertainty, quite independently of the argument about the application of s 44.

[27]

Extinguishment of a debt by appointment of debtor as executor

The issue in Bone v Commissioner of Stamp Duty (1974) 132 CLR 38; [1974] HCA 29 was whether debts owing to the testator from her children formed part of her dutiable estate. The testator's will appointed her children as her executors and also provided for the release of the debts. One of the arguments for the children concerned the rule that a person cannot sue himself or herself, and accordingly if a person owing a debt to the testator is appointed as the testator's executor, the indebtedness is extinguished. It was argued on behalf of the children that, as executors, their title under the will operated from the moment of the deceased's death, and accordingly that any indebtedness to them was extinguished at the moment of the deceased's death and did not form part of her dutiable estate.
Stephen J expressed the view that this argument would succeed where the general law rule concerning an executor's title continued to apply. But he said (at 46): However under the succession law of New South Wales the testator's choses in action do not vest in his executor upon death; the executor does not, at the moment of death, become the person entitled to sue for debts due to the deceased; instead, by s. 61 of the Wills, Probate and Administration Act (N.S.W.), the real and personal estate of a deceased, whether testate or intestate, is, until grant of probate or administration, deemed to be vested not in the executor named in the will but in the Public Trustee. … The relevant date for the purpose of death duties is the date of death and postponement of vesting until grant of probate must produce the result that debts are not extinguished at the date of death. The fact that upon grant vesting is retrospective to the date of death - s. 44 - does not, I think, affect, for the purposes of death duties, the continued existence of these choses in action after date of death and until grant of probate. The deemed vesting of a deceased's estate in the Public Trustee may confer upon him only limited powers and these may not include any power to sue for debts owed to the deceased: Ex parte Public Trustee; Re Birch (1951) 51 SR (NSW) 345, at pp 350, 357; Ex parte Newlands Bros; Re Kenniff (1955) 56 SR (NSW) 35; Ex parte Callan; Re Smith (1968) 87 WN (Pt 1) (NSW) 595. However, for present purposes it is unnecessary to determine the extent of the power of the Public Trustee; it is the negative aspect of s 61 that is of relevance, the fact that upon death the executor does not become the competent plaintiff to sue for the debts of the deceased, it being irrelevant that, if such be the case, there is for the time being no competent plaintiff at all.
Mason J considered that the common law rule "reflected the presumed intention of the party having the right to bring the action [that is, the testator], and was not absolute in its operation" (at 53). His Honour considered that, in the circumstances, no extinguishment was intended. But he continued (at 54): …in New South Wales the title of the executor is governed by the provisions of ss. 44 and 61 of the Wills, Probate and Administration Act 1898, as amended. The effect of the two sections has been to place the title of the executor on a similar footing to that of the administrator at common law; the executor's title now flows from the grant of probate, in the meantime the estate is in the Public Trustee, although upon the making of the grant the doctrine of relation back will apply. I have assumed that this circumstance would not of itself operate to defeat the old common law rule as to extinguishment of the debt, without expressing any conclusion on the question.
Thus Mason J assumed, without deciding, that the executor's title would relate back under s 44 so as to give rise to an extinguishment of the debt at the date of the testator's death, whereas Stephen J thought that there would be no extinguishment, at least for the purposes of the application of estate duty legislation. Menzies J agreed with Mason J. Both Barwick CJ and McTiernan J agreed with the judgments of Stephen J and Mason J without distinguishing between them. The High Court actually decided the case in favour of the children on another ground; the Privy Council in Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223; [1976] UKPCHCA 1 reversed the High Court's decision on that point but this does not affect what Stephen J and Mason J said.

[28]

Commencement of proceedings

As we have seen, in Callan Isaacs J (at 448) relied on three decisions of the English Court of Appeal for the proposition that the doctrine of relation back in the case of an administrator did not validate as competent an action which was incompetent when the writ was issued. His Honour clearly considered that these authorities governed the position of an executor in New South Wales following the enactment of ss 61 and 44.
The question presented itself directly in Marshall v DG Sundin & Co Ltd (1989) 16 NSWLR 463. An action in negligence was brought by an executor claiming damages for the benefit of the deceased testator's estate under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). The action was commenced before the executor was granted probate. Yeldham J held (at 467-468) that the effect of ss 44 and 61 was to assimilate the position of executor with that of an administrator with respect to the vesting of real and personal property. Thus, because a cause of action (as a chose in action) was vested in the Public Trustee before the grant of probate, a putative executor nominated under a will had no standing to sue.
Following the authorities cited by Isaacs J in Callan, Yeldham J held that the relation back doctrine could not save the action. His Honour said (at 473): Although the general rule, as referred to by Herron J in The Daily Pty Ltd v White, preserves the validity of transactions, whether by an executor or by an administrator, pending grant of probate or administration, which are shown to be for the benefit of the estate or to have been made in due course of administration, nonetheless it is plain that this does not extend to the institution of actions such as that with which the present case is concerned. As Isaacs J observed in Ex parte Callan; Re Smith (at 602-603; 448): "… the primary purpose of s 44 was to provide an executor or administrator with a means of remedying injury done to the deceased's property between death and grant, and this remedy has enabled executors and administrators to recover against persons who have wrongfully dealt with the deceased's estate in that interval." As Isaacs J pointed out (and correctly pointed out, in my respectful view) the doctrine of relation back, in the case of an administrator in England (and in the case of both executor and administrator in New South Wales), does not validate as competent an action which was incompetent when it was instituted: see also Halsbury, par 736 at 390 and Williams on Executors and Administrators, 13th ed vol 1, par 337 ff at 211 ff
In Darrington v Caldbeck (1990) 20 NSWLR 212 at 219 an application was made under the Conveyancing Act 1919 (NSW), s 66G, by the executrices of the deceased testator (Eason) who in turn was executor of the deceased registered proprietor. At the time of the application, the executrices had not been granted probate of Eason's will, but they later obtained probate. Young J said he would follow Marshall not only by reason of comity but because it appeared "undoubtedly correct" (at 219). This meant that, because the real and personal property of Eason vested in the Public Trustee before the grant, the putative executrices were not a "co-owner" at the time the application was commenced and it was a nullity.
In Byers (cited at [215] above), an action for damages for misleading and deceptive conduct (amongst other causes of action) was commenced on behalf of a deceased testator by the executrix named in his will. At the time of the commencement of proceedings, the executrix had not been granted probate although it had been granted at the time of the hearing. Emmett J reviewed the legislative history of ss 44 and 61, and a number of the authorities, including both Marshall and Darrington. He concluded that in the interval between vesting and grant the executor nominated in the will has no title (at [55]). He continued (at [56]): The doctrine of relation back, as the doctrine applies under s 44 of the WPA Act, does not have an unlimited or expansive operation but is confined and limited to the operation of that doctrine at common law: see Isaacs J in Ex parte Callan; Re Smith [1968] 1 NSWR 443 at 448. The doctrine does not apply to disturb the interests of other persons or interests affected during the period, and cannot restore to the executor or administrator title to something which has ceased to exist in that interval: see Isaacs J in Ex parte Callan; Re Smith at 448; see also Halsbury's Laws of England, (4th ed), Vol 17, par 735; Fred Long & Son Ltd v Burgess [1950] 1 KB 115.
Emmett J concluded that the action was a nullity and could not be saved by relation back. His Honour said (at [57]): Since the construction of ss 44 and 61 accepted by Yeldham J and Young J is clearly open, I am not prepared to conclude that their views of the provisions are clearly wrong. Indeed, while I have some reservation, I am disposed to conclude, for the reasons outlined above, that the conclusion is correct.
The Full Court of the Federal Court affirmed Emmett J's decision on appeal: Byers v Overton Investments Pty Ltd (2001) 109 FCR 554; [2001] FCA 760. In doing so, the Full Court cited Callan, Marshall and Darrington. The Full Court also cited the statement by Stephen J in Bone quoted at [246] above.
Thus there is a settled line of authority in this State, following the enactment of ss 44 and 61, that proceedings commenced before the grant of probate by a person named as executor were a nullity. The position may subsequently have changed because of Uniform Civil Procedure Rules 2005 (NSW), r 7.10 (see Hewitt v Gardner (2009) 3 ASTLR 407; [2009] NSWSC 705 [32]-[74] per Ward J (as her Honour then was)), but I need not consider whether that is so.

[29]

Option cases

In Hyde v Skinner (1723) 2 P Wms 196; 24 ER 697, the defendant leased premises to a testator. A term of the lease gave the testator an option to renew the lease on the same terms and covenants within twelve months before the lease's expiry. The testator died without having exercised the option but it was purportedly exercised by the plaintiff as executor of the testator's will within the timeframe. The defendant objected on the basis that the option to renew was personal to the testator. Lord Macclesfield LC held the covenant was not personal and could be exercised by the executor. His Lordship said (at 197): The executors of every person are implied in himself, and bound without naming…it is immaterial whether the testator or the executors required the renewal of the lease, it need not be personal.
In Re Cousins; Alexander v Cross (1885) 30 Ch D 203, a testator owned a hotel. The will gave the testator's son the option to purchase the hotel. The son died soon after the testator and the Court of Appeal held that the option could not be exercised by the son's executors. Cotton LJ said (at 213): … and the argument has really been this - that an option is a valuable thing, that that which is valuable is property, and, further, that this was part of the testator's property transmissible to his executors. Undoubtedly an option may be valuable, and in one sense it is property, but that does not at all determine how long the option is to continue, or who is to exercise it. The only question which we have to consider here is this, namely, whether the option which was given had come to an end, that is to say, whether it is an option to be exercised by the son during the limited period of his lifetime, or whether it is an option to be exercised, not only by the son, but, after he was dead, by his executors. If it is said that it is property and it goes to his executors, it is assumed that all property must last after a man's death. That is an entire fallacy. Suppose it had been a gift to him of a life interest; that is property, and it may be a very valuable property, but no one would ever suggest that that could go to his executors. The real question is, although this is property, is it such a property as can be made valuable at any time after the son's death?
Lindley LJ said (at 215): Now it is said that that is not a personal option to him, but that it is in the nature of property which passes to his assignees in bankruptcy, if he became bankrupt, and was saleable by him, and passes to his executors. It appears to me that the bankruptcy test is by no means conclusive, nor of much assistance one way or the other. The question is, whether it was only an option which the son personally was entitled to exercise or whether it was exercisable by his executors, administrators, or assigns.
In Carter v Hyde (1923) 33 CLR 115; [1923] HCA 36, the defendant was lessee of premises owned by the testator. The defendant granted an option, which was to be open for three months, to sell the lease (amongst other property) to the testator. The testator died within the three months and the plaintiffs, who were executrices under the testator's will, purported to exercise the option by giving notice to the defendant. The trial judge held there was a valid contract and decreed specific performance as against the defendants.
The High Court affirmed the trial judge's conclusion. Knox CJ said (at 120-121): In effect [the option] amounts to an agreement by the appellant to sell the lease, &c., for £1,500 to Hyde if within three months the latter signifies his assent to purchase. The benefit of such an offer may be personal to the offeree or may be assignable by him in equity. Whether it is the one or the other must depend on the subject matter of the offer, on the terms in which it is expressed and on the circumstances. Prima facie the benefit is assignable unless the terms of the offer or the subject matter or other circumstances show that it was intended only to be open to acceptance by the offeree personally (see Buckland v Papillon; Tolhurst v Associated Portland Cement Manufacturers). If the option is personal to the offeree, if, for instance, the agreement offered calls for the exercise of his personal skill or discretion, it can, of course, be accepted only during his lifetime and lapses on his death. Or it may be that the option, though not personal to the offeree in the sense of calling for his personal services or qualifications, on its true construction expressly or by necessary implication requires acceptance by him personally. The benefit of such an option could not pass to the executors of the offeree because it must be accepted if at all by the offeree personally. But, if the option be not personal to the offeree and do not expressly or by necessary implication stipulate for acceptance by him personally or limit the time for acceptance to his lifetime, I think the result of the authorities is that the benefit of the option is an ordinary assignable chose in action which on the death of the offeree passes along with his other property to his personal representative. In the present case I can find nothing, either in the terms of the document or in the nature of the property or in the circumstances, tending to show an intention either that the offer was open for acceptance only by [the testator] personally or that the time for acceptance was limited to expire on his death. It follows, in my opinion, that the benefit of the option passed on the death of [the testator] to the respondents as his personal representatives. The decision in Hyde v. Skinner, referred to by my brother Isaacs during the argument, supports the conclusion at which I have arrived.
Isaacs J differed from Knox CJ on the legal nature of an option. Isaacs J considered that an option was properly analysed as an offer to sell property subject to a contractual obligation to keep the offer open for the option period, rather than an agreement to sell the property subject to a condition subsequent.
His Honour then considered whether an offer of this nature was capable of transmission on death (at 123-124): … A bare offer, retractable at any moment, creates no interest; until acceptance no obligation arises either legal or equitable. But when an irrevocable offer is created, a situation arises which is entirely different. The very word "irrevocable" imports a right in the other party to hold the offeror to his offer and to have the benefit which acceptance linked with the offer would confer. Whether the right is transmissible depends on the nature of the offer properly construed. If when properly construed it is found to be limited to purely personal relations, it terminates with the death of either. If it is found to confer a right with respect to property, it may or may not be transmissible. There is only one universal rule for such a case; and that is, the instrument creating the right must be construed for the purpose according to recognized principles of construction applicable to such instruments.
His Honour referred in particular to Re Cousins in support of this view. He concluded (at 125): My duty, as I understand it, is to ascertain by a proper process of construction of the agreement of 1st February 1921 the nature and intended duration of the offer, that is, whether it was purely personal or in the nature of property, and, if in the nature of property and transferable as property of a living man, whether it was also transmissible as part of the estate of a deceased man…There was nothing of a purely personal nature in the bargain, there was nothing to indicate it was to be limited to Hyde's life, it was to round off so to speak his existing ownership of the property; and consequently it was, on a proper construction of the document, a right in the nature of property to endure for the expressed period of three months, and passed as part of his estate to his executors.
Higgins J agreed with Knox CJ and Isaacs J in the result. He said (at 132): The position may be regarded in either of two aspects - contract and property; and in either aspect the result is the same, that the executors may sue. In Williams on Executors (11th ed., p. 606) the learned author says that with respect to such personal actions as are founded upon any obligation, contract or other duty, the general rule established from earliest times is that the right of action on which the testator might have sued in his lifetime is transmitted to his executor or administrator; and (p. 663) the executor is also in many cases entitled to sue on a contract made with the testator without naming his executors, although the right of action does not accrue till after the death of the testator. An executor can redeem a pawn made by a testator (p. 665). Moreover, the interest of the testator in an option is a contingent or executory interest in the estate, and as such it is transmissible to the executors of the holder of the option if he die before the contingency occur. That it is an executory interest is made clear in London and South-Western Railway Co. v. Gomm. There the railway company, in conveying some superfluous land, had obtained an option from the purchaser to buy it back at any time. "The only case in which a contingent future interest is not transmissible" (to executors) would seem to be "where the being in existence" (that is, the person holding the interest being in existence) "when the contingency happens is an essential part of the description of the person who is to take" (per Kay J. in In re Cresswell; Parkin v. Cresswell). In other words, the instrument conferring the option must show in itself that the option is personal only.
In Kennewell v Dye [1949] 1 Ch 517 the tenant of a property was granted an option by the landlord upon three months' written notice being given by the tenant to the landlord. The landlord died in June 1947 and in November 1948 the tenant gave the landlord's legal personal representative notice in writing of exercise of the option. Roxburgh J concluded that the option was binding on the landlord's legal personal representative, applying a statement from David Hughes Parry and John Cherry, Williams on Executors (Stevens & Sons, 12th ed, 1930) at 1126 which in turn was based on Hyde v Skinner. The point was then taken that the notice needed to have been served on the landlord personally.
His Lordship rejected this point, relying on the 17th Century King's Bench case of Harwood and Bincks v Hilliard (1677) 2 Mod 268; 86 ER 1065. In that case there was an agreement between the plaintiffs and a testator for the sale of a parcel of lands for a certain amount, on terms that if the lands did not fetch the amount specified, the parties would contribute to the shortfall. The testator's covenant was expressed to be for himself and his executors, provided that the plaintiffs gave him notice in writing of the sale within ten days, and the covenant made no provision for the giving of notice to the testator's executors or administrators. The case was decided on demurrer, the plaintiffs averring that they had given notice within the ten day period to the defendant, who was the deceased's executor, and the defendant demurring on the ground that this was insufficient. Initially two members of the Court were of the view that the notice had to have been given to the testator personally, but that view changed and (at 269): …the whole court agreed it to be otherwise, because the covenant runs in interest and charge, and so the executor is bound to pay; and therefore it is necessary that he should have notice.
In Kelsey v Kelsey (1922) 127 LT 86 (also reported in less detail in 91 LJ Ch 382), articles of partnership between the testator and the defendant provided that on the death of either partner the surviving partner should have the option to purchase the business, upon giving notice in writing to "the personal representatives" of the deceased partner within three calendar months from the date of his death. The plaintiff was the executrix under the testator's will and gave notice within three months of the testator's death but at that point had not obtained probate. It was argued that the expression "personal representatives" meant persons to whom probate or letters of administration had been granted. This was rejected by Eve J, who held that an executor, even before probate was granted, fell within the definition of a "legal representative".
The decision was referred to by Williams J in Ballas v Theophilos (No 2) (1957) 98 CLR 193; [1957] HCA 90. That was another case where the partnership deed conferred on the surviving partner an option to acquire the share of the deceased partner. The defendant was the executrix appointed under the will of the deceased partner who died in March 1954. Correspondence took place in which the solicitor for the plaintiff, the surviving partner, indicated that he wished to exercise the option but a formal notice of exercise of the option was not issued to the defendant until July 1955. Probate was obtained in October 1955.
The High Court held that, a time for exercise of the option not being specified in the partnership deed, there was an implied condition that it be exercised within a reasonable time, and the formal notice of exercise was far too late. The earlier correspondence was found to be insufficiently clear and definite to constitute an exercise of the option and the plaintiff's claim was dismissed. But Williams J made it clear that, had a formal notice been issued within a reasonable time, it would have been effective, even if before probate. He said (at 204): In addition to the letters that passed between them, conversations took place between the solicitors for the parties from which it appears the solicitor for the plaintiff continued to be under the misapprehension seen in the letter of 6th July 1954 that the plaintiff could not exercise the option to purchase the share of the deceased partner until probate had been issued to his executrix. That this was a misapprehension is made clear by Kelsey v. Kelsey.
These decisions concerning executors are to be contrasted with the decision of the Court of Common Pleas in Holland v King (1848) 6 CB 727; 136 ER 1433. This also was a partnership case. The partnership indentures provided that where one of the partners died, the executor or administrator of the deceased partner should have the option of succeeding to the share of the deceased partner in the partnership business on the giving of notice within three months after the death of the deceased partner to the surviving partner or partners.
The plaintiff was the widow of one of the partners, who died in February 1844. In May 1844, within the three month period, the plaintiff served a notice on the surviving partners purporting to exercise the option. Later, in December 1844, letters of administration of the deceased's estate were granted to the plaintiff. A question was referred to the Court (consisting of Coltman, Maule and Williams JJ) as to whether the notice was effective. The Court certified that it was not. No formal reasons for decision were given with the certificate but the report of the case records the arguments that were made and the response by the judges.
Counsel for the plaintiff accepted that at the time the notice was given, the plaintiff was not entitled to give it, but argued that the letters of administration, when granted, related back to the deceased's death and made the notice good. Counsel pointed out that by statute (21 Hen VIII c 5, referred to in the passage quoted from Byers at [216] above) administration was to be granted to the widow in preference to the next of kin. Maule J said (at 740): The right of option is given by the two surviving partners, to the representative of the deceased partner, upon the express condition that it shall be exercised within three calendar months after the death. If the notice here given be held to be an effective notice, the consequence will be, that the widow might have given a notice that would have bound the surviving partners, and then might have waited for a longer period than three months, to see if it was worth while to avail herself of it.
And also (at 740-741): Mrs Holland clearly could not be a partner until administration granted. The very object of the covenant in question was, to limit the time within which the surviving partners should know whether they were to carry on the business alone or with a third.
Counsel responded that "so strict a construction of the covenant might operate great hardship - for instance if administration had been taken out in the wrong court" and referred to Foster v Bates (see [224] above). Maule J, however, responded (at 741): That was merely a case of ratification.
Dibbins v Dibbins [1896] 2 Ch 348 was another partnership case. The partnership articles provided for the surviving partner to have an option of purchasing the share of the deceased partner upon giving notice in writing of his intention to do so to the "personal representative" of the deceased partner within three months of the date of the partner's death. The articles made express provision for the notice to be addressed to the "legal personal representatives" of the deceased partner. The plaintiffs were named as the executors in the will of one of the partners who died in April 1895. The surviving partner at the time was of unsound mind but had not been found to be so by inquisition. In July 1895, within the three month period, a solicitor purporting to act for the mentally ill partner served notice on the plaintiffs purporting to give notice of exercise of the option. Later that month an order was made by the Lunacy Court authorising a notice to be given on his behalf. The case was argued as one of ratification. But Chitty J (at 351-352) referred to Holland v King and quoted the statement of Maule J in argument which I have set out at [275] above. His Lordship held that the notice was invalid.
In Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57; [1974] HCA 49, Mr Laybutt gave an option to purchase land to Amoco. To exercise the option, Amoco was required to give notice and pay a deposit to Mr Laybutt or his agent by a specified date. No agent was nominated under the agreement. Before the specified date, Mr Laybutt died. He left a will nominating his wife as executrix but she had not, at that point, obtained probate. Amoco purported to exercise the option by sending the notice and deposit to solicitors retained by Mrs Laybutt. The issue for the Court was whether specific performance was available to compel the vendor to complete the contract of sale.
The three High Court justices who sat were unanimous in holding that the option had not been validly exercised, but for differing reasons. Menzies and Mason JJ considered that, on its true construction, the agreement provided that the payment was to be made to the vendor, his successors and assigns. Their Honours noted that there was a question as to whether this included the nominated executrix before the grant of probate. They assumed for the purposes of the argument that it did, expressly without deciding the question. But it had not been established that the solicitors had been authorised to receive the deposit. Accordingly, the option had not been exercised validly.
Gibbs J ultimately decided that Amoco could not have exercised the option because it was not possible to interpret the clause providing for the nomination of an agent in any way to determine who such agent might be. The clause was therefore void for uncertainty and could not be severed from the agreement. Unlike Menzies and Mason JJ, however, Gibbs J did address whether the executrix was the proper party to receive the notice. His Honour noted (at 77-78): There is no doubt that at the time when the notice was given the estate of the deceased had by virtue of the operation of s. 61 become formally vested in the Public Trustee, although it is not altogether clear what capacity and powers the Public Trustee had as a result: cf. Holloway v. Public Trustee (1959) SR (NSW) 308, at p311. At the date of the hearing, however, probate had been granted and s. 44 had taken effect; the estate of the deceased was then vested in the appellant whose title had related back to the time of death. Moreover, although s. 61 provides for the vesting of the deceased's property pending probate, it does not alter the rule that an executor derives his title from the will and that the probate merely authenticates his title and is not the source of it. At the time when the notice was given the appellant was therefore the executrix of the deceased's estate and in that capacity was competent to receive the notice exercising the option; the fact that the property of the deceased was not then vested in her provides no reason why she could not do so.
His Honour explained Holland v King as a decision that the exercise of the option could not be ratified by the administratrix after the time allowed for the exercise of the option had expired. His Honour distinguished the case before him on two grounds. First, the appellant was the exectutrix at the time she received the notice (a view clearly based on the passage I have set out above) and, second, she did not perform any act which required ratification and merely received the notice. His Honour pointed out that in fact in Carter v Hyde probate had not been granted until after the notice exercising the option had been given, but acknowledged that the point had not been discussed in that case.

[30]

Analysis and conclusion

It is clear that, in general, a contract entered into by a natural person may be enforced against that person's legal personal representative if he or she dies before completion. But I do not think that this general "rule" should be seen as a fixed rule of positive law. The language of Lord Macclesfield LC in Hyde v Skinner that the executor of every person is "implied in himself and bound without naming" is, expressly, the language of implication. As with other implications, it must ultimately be a matter of discerning the intentions of the parties and the general "rule" must therefore give way to an express, or sufficiently clearly implicit, statement of intention to the contrary.
In the present case, there is no dispute that the general "rule" applies, in the sense that the contract was enforceable notwithstanding the death of one or other of the parties. As has been seen, cl 1 of the contract did not define a "party" as including that party's legal personal representative. But, as has been accepted since Hyde v Skinner, it was not necessary to do so. There was nothing in the contract to exclude the usual implication to that effect. Indeed, the provision in cl 20.6, referring to service of documents on a party's solicitor if that party has died, implicitly contemplated that in such a situation the contract continued to be enforceable. The present debate concerns a separate issue, namely the way in which the power of rescission could be exercised in the period after the deceased's death.
In the case of service on the party who had died or become mentally ill, the contract in fact did make express provision. It provided for service on that party's "solicitor". In my view this means, in accordance with the definition of "solicitor" in cl 1 of the standard form, the person named as the vendor's solicitor in the contract (it is not necessary to consider whether it would also include a solicitor who subsequently assumed carriage of the matter without notice having formally been given pursuant to the cl 1 definition: cf Pratt v Hawkins No 2 (1991) NSW Conv R 55-592). In my view this did not depend upon whether the solicitor had any authority on the deceased's behalf outside the contract, and it would be immaterial whether the party's death had resulted in the termination of the solicitor's retainer. Had the contract provided that notice could be given by publication in a newspaper or on a bulletin board, I have no doubt that would have been treated as effective irrespective of whether such a notice came to the attention of those responsible for the affairs of the deceased or mentally ill party.
But the contract made no express provision for service of notices on behalf of someone who had died, by that person's solicitor or anyone else. Of course, the usual implication, flowing from Hyde v Skinner, would be that the party's duly appointed legal personal representative could do so. But at the time Ms Deigan had not obtained probate.
The argument for Ms Deigan is that, having later obtained probate, she had a right to issue the notices which related back under s 44. But I think it is important to note that s 44 is concerned, in its terms, only with the title to property. It does not expressly deal with the exercise of contractual rights at all.
Of course personal property, including any chose in action vested in the deceased, passes to the deceased's executor just as real property does. But an executory contract under the type of consideration in this case is an unusual type of chose in action. It carries with it obligations as well as benefits. And, like an option, its assignability may be limited. If the obligations under such a contract are purely personal it is not assignable at all; and, even if they are not personal in this sense, the contract may provide that they are not assignable: see generally Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85.
Higgins J in Carter v Hyde said that the question whether the option in that case survived the death of the option holder could be analysed either in terms of property or contract. But both Knox CJ and Isaacs J treated it as a question of interpretation of the contract creating the option. Similarly, in Re Cousins, all members of the Court of Appeal treated the question as one of interpretation of the instrument creating the option, in that case, a will. It is also significant that Mason J in Bone analysed the rule concerning a release of a debt by appointment of the debtor as executor as a rule depending on the intention of the testator, presumably to be determined as a matter of construction from the will.
I think the question of whether the rights of a party to an executory contract such as this one pass to the party's estate on the party's death must be determined in the same way. And the same approach must equally apply to the question of how, if they pass, such rights are to be exercised on the estate's behalf after the party's death.
It follows, I think, that the question before me is not whether s 44 in some way conferred on Ms Deigan, retrospectively, authority to exercise rights of rescission which Mr Lockrey had under the contract. The question is whether the contract, having provided (implicitly) for the right of rescission arising on Mr Lockrey's death to be exercised by his duly appointed legal personal representative, also went on to provide that upon the grant of probate actions taken by the nominated executor before the grant were retrospectively to be treated as valid. Ultimately this is a question of interpretation of the contract and specifically it is a question of implication.
In BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; [1977] UKPCHCA 1 at 283, five conditions were identified as having to be satisfied for a term to be implied into a contract. In my view two of those conditions stand out.
First, there is the question of whether the implication was "necessary to give business efficacy to the contract". In my opinion, it was not. It would have been open to the putative executor under the deceased party's will or any other responsible person acting in the interests of the deceased party, to obtain an urgent grant of probate or administration or a grant of representation for the limited purpose of exercising the right to rescind. It therefore cannot be said that relation back was the only practical answer to the hiatus created by the party's death.
The second relevant condition is that the putative implied term must be "reasonable and equitable". I do not think this requirement is satisfied either. Parties contemplating the operation of the contract would have recognised that, in the event that one party died and the possibility arose of the contract being rescinded on that basis, the other party would need to know where he stood. The practical difficulties which would arise with relation back, which are referred to by Isaacs J in Callan (see [243] above), are important considerations in this regard. Faced with a notice issued by a party claiming to be executor of the deceased party's estate, the other party would have no means of knowing what might eventuate. The will in question might or might not actually prove to be the deceased's last will. Even if it proved to be the deceased's last will it might or might not prove to be valid. The putative executor might not even ultimately apply for probate. If the other party had to wait for the application to proceed in the ordinary course (as happened in this case) it might be months before the position was clarified. And the other party would have no control over the process of applying for probate. These factors are of particular importance in a commercial contract such as this one. In my view, the implication of a term providing for relation back of authority would be neither reasonable nor equitable.
I think the decisions in Holland v King and Dibbins v Dibbins support the conclusion that the contract in this case does not contemplate a right to issue the notice operating retrospectively. Holland v King shows that even if the contract in this case had specifically referred to the service of a notice by Mr Lockrey's "personal representative" or "legal personal representative", that would not have included the putative administrator under the law pre-dating s 44, and accordingly would not now include the executor nominated in Mr Lockrey's will before the grant of probate. Dibbins v Dibbins shows that the same would have been so if Mr Lockrey had become mentally incapable and the notice had been issued on his behalf by somebody who was later appointed to manage his affairs. This is I think of particular significance, given that cl 33.2 applies equally to a situation where a party to the contract becomes mentally incapable as to the situation where he dies.
It might be objected that my conclusion creates a lack of mutuality in the contract. Mr Fussell as purchaser can proceed to enforce the contract against Ms Deigan, but she cannot exercise the right of termination under cl 33.2 back against him. But on analysis there is no contradiction. In notifying Ms Deigan that Mr Fussell wished to proceed, and then issuing a notice to complete, Mr Brown on Mr Fussell's behalf was exercising an express contractual right to serve documents on Ms Deigan (properly, CLS Legal) as the vendor's solicitor. If Mr Fussell succeeds in these proceedings, he will obtain an order for specific performance against Ms Deigan, but that only reflects the fortuitous circumstance that Ms Deigan, after the contract was made, was nominated as Mr Lockrey's executrix in what turned out to be his last will.
For these reasons, I conclude that the May notice of rescission was ineffective to exercise the right of rescission arising from Mr Lockrey's death.
In case I am wrong in characterising the question as one of contractual interpretation rather than statutory construction, I will now consider the interpretation of ss 44 and 61.
Out of the two sections it is s 44 on which attention must focus. The question is whether the subsequent grant of probate had some retrospective effect. This is the subject matter of s 44, not s 61. To conclude that, between the date of Mr Lockrey's death and the grant of probate, the NSW Trustee was the legal repository of the title to the property would not necessarily mean that, once probate was granted, it could not have some retrospective effect.
I think the course of authority since the decision of the English Court of Appeal in Fred Long amply bears out Emmett J's statement (quoted at [253] above) that s 44 only operates in a restricted way, consistently with the former general law doctrine of relation back. It is designed to protect the deceased's estate from "wrongful injury" during the interval between the deceased's death and the grant of probate. The suggestion by Herron J in The Daily (see [234] above) that an action taken by a prospective executor is not a nullity but is merely "inoperative" until the grant is made, which was obiter and was not fully considered, cannot, in my view, survive this later stream of authority.
I think this conclusion accords with principle. Relation back first developed to allow an action to be brought against a person trespassing on the deceased's property between the date of death and the date of grant. The fact that at the time the trespass takes place the identity of the person with title to the property is unknown is no disadvantage to the trespasser. The trespasser knows that the property belongs to someone else. There is nothing unfair with allowing the trespasser to be sued for the trespass by the person who ultimately obtains a grant of probate or administration. But it is otherwise where the exercise of contractual rights is concerned. As the authorities have recognised, in contractual situations such as a tenancy it would be intolerable if a party dealing with the estate were faced with actions of a putative executor which might or might not be effective depending upon whether that putative executor ultimately obtained probate.
Counsel for Ms Deigan argued that relation back was based on benefit to the estate, so that if the exercise of the option was in the estate's interest, it was given effect by s 44. It was agreed that the property was now worth considerably more than the purchase price and counsel argued it was therefore in the interests of the estate for contract to be rescinded. But the requirement of benefit to the estate derives from cases where a contract has been made by a person who later becomes administrator or where a subsequently appointed administrator seeks to enforce a contract made on the estate's behalf. Benefit to the estate has not been considered relevant for the purposes of determining the legal effect of a purported exercise of the pre-existing rights between the deceased and a third party. Isaacs J in Callan did not ask whether sustaining the assignment would be in the estate's interest; nor did Yeldham J in Marshall ask whether it would be in the estate's interest for the proceedings to be maintained.
This is consistent with principle. Where the exercise of rights depends upon the receipt of a notice, the effect of serving a notice on the deceased's executor or administrator could not depend upon whether the Court later thought it was in the estate's interest to receive the notice. So it should likewise be where the exercise of rights depends upon the issue of a notice on behalf of the deceased. The third party should not be in the position of receiving a purported notice the validity of which might or might not later relate back upon the grant of administration, depending on the Court's view about the estate's interest.
For these reasons, I think that even if s 44 applied it would not have the effect of retrospectively authorising Ms Deigan's notice of rescission.
The final argument for Ms Deigan was based on the statement by Gibbs J in Laybutt which I have set out at [279] above. Counsel for Ms Deigan argued that, just as (in Gibbs J's view) notice of exercise of the option could be given to the nominated executrix in Laybutt even though the property of the deceased was not then vested in her, so, in this case, Ms Deigan as the nominated executrix could validly give notice under cl 33.2 before the grant of probate even though Mr Lockrey's property had not vested in her.
The passage which I have quoted and upon which counsel relied contains four sentences. The first states that as from the date of death the deceased's property vests in the Public Trustee. That is uncontroversial. The second sentence states that this is subject to relation back in s 44. That also is uncontroversial, although Gibbs J made no reference to the authorities which showed that relation back is a narrow doctrine which does not alter retrospectively the legal effect of steps taken during the interval.
The third sentence is critical. For convenience, I set it out again: …although s 61 provides for the vesting of the deceased's property pending probate, it does not alter the rule that an executor derives his title from the will and that the probate merely authenticates his title and is not the source of it.
The fourth sentence expresses Gibbs J's conclusion that the appellant could validly receive the notice even though the deceased's property was not vested in her. That way of expressing the conclusion tends to suggest that it was based on the point made in the third sentence, but Gibbs J did not expressly say so and on that view it is not clear why he mentioned s 44 at all.
The third sentence is problematical. The scope and application of the common law rule that an executor's title flowed from the will does not appear to have been argued in any depth. As I have pointed out at [217] above, the rule was not as absolute as Gibbs J stated it. In particular, the rule did not entitle an executor to require payment of an amount due under a contract with the deceased before the grant of probate.
In context the reference in Gibbs J's third sentence to "title" would appear to be a reference to title to the deceased's property. But read this way, the sentence seems impossible to reconcile with the authorities which state that the effect of s 61 and s 44 operating together is to assimilate the position of an executor under the general law rule to that of an administrator. It also seems impossible to reconcile with what Stephen J said in Bone.
In my view it is artificial to consider the part of the rule concerning the vesting of title in isolation from the qualification (ostensibly one of evidence, but in fact amounting to a rule of substance) requiring subsequent proof of the grant of probate. When one considers the effect of the rule and the qualification operating together, the simple fact is that ss 61 and 44 did change the law. The outcome in Marshall illustrates this. Under the previous law, an action commenced by an executor before the grant of probate was valid if probate were subsequently obtained. Following the enactment of ss 61 and 44, such an action was a nullity even if probate were subsequently obtained.
Subsequent authority in this State has cast doubt on the third sentence. Yeldham J in Marshall quoted from the judgment of Gibbs J including the third sentence but did not in terms question it. In Byers, Emmett J referred to the statement by Mason J in Bone and said that this seemed to be directly inconsistent with the third sentence. His Honour also cited the statement of Stephen J that the executor does not become a competent plaintiff to sue for the debts of the deceased (at [50]). In GEL Davies J said that the third sentence "has been doubted" (at [35]). His Honour referred to the decisions in Bone, Marshall, Darrington and Byers. Of those decisions, only Byers expressly cast any doubt on the third sentence. Indeed the decision in Bone actually preceded the decision in Laybutt by several months. But I take his Honour to have meant that the decisions in question are such as to render the accuracy of the third sentence doubtful, and I respectfully agree.
In the course of the appeal in Byers, counsel for the appellant argued that s 61 did not alter the common law rule that an executor's title derived from the deceased's will. Counsel relied for that submission on Gibbs J's statement in Laybutt. The Full Court described the submission as misconceived and responded (at [21]): … Gibbs J is not referring to the vesting of the deceased's property but to the source of the executor's appointment as executor which undoubtedly is the will. His Honour's position is quite consistent with the proposition that the vesting of the property is effected by statute. At common law a grant of probate was purely evidentiary albeit the only acceptable evidence of an executor's appointment. As explained above, title to the property of a testate estate vested in the executor at the death of the testator. Section 61 alters that position in relation to the vesting of property only. It does not alter the fact that the title to the position of executor stems from the will. As such it makes a distinction between the powers of the executor before and after probate that does not exist at the common law. As Mr McInerney, counsel for the respondent, pointed out in his written submissions: "After death and before a grant of probate, an executor has a title derived from the will which grants the executor a status in respect to the estate. The executor's authority in respect to the estate is limited, however, to situations where the vesting of the property in the executor is not a necessary pre-condition to the exercise of that authority."
In this analysis, the common law rule concerning succession by an executor is seen as consisting of a sub-rule concerning title to the deceased's property, which is affected by s 61, and a wider sub-rule concerning "title to the position of executor", which is not. The result is that an executor is, from the deceased's death, entitled to exercise "authority" in respect to the estate which does not depend upon the property having vested in the executor. Counsel for Ms Deigan submitted that such "authority" extended to the issue of a rescission notice on behalf of Mr Lockrey's estate in this case.
In my respectful view this analysis has its difficulties. In the first place, there is no sign of it in previous authorities which expounded and developed the common law rule. Those authorities speak in terms of the title to the deceased's property, not "title to the position of executor", vesting in the executor. All, or virtually all, of the powers and duties which an executor has are powers and duties which are to be exercised with respect to the deceased's property and by virtue of the executor's ownership of that property. The executor's powers with respect to the deceased's funeral arrangements and the disposal of the deceased's body may be an exception to this, but the exception rests on the unique status in the law of the human body which, at least when dealing with the body for burial and funeral purposes, cannot be the subject of rights of ownership: Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45. It is, with respect, hard to see what real content "title to the position of executor" has, divorced from title to the deceased's property.
There is also a conceptual difficulty with drawing the distinction between proprietary and non-proprietary authority. The analysis is founded on what Gibbs J said in Laybutt but as his Honour noted, there is a standing controversy about whether rights under an option should be analysed in proprietary, or contractual, terms. Ironically, Gibbs J himself came down on the "proprietary" side of the debate (Laybutt at 76). It might also be thought strange that, on the argument for Ms Deigan, she could exercise a right to rescind the contract under cl 33.2 before the grant of probate, but would have lacked the ability to bring proceedings for specific performance of it.
A similar problem would arise in trying to apply the analysis in tenancy cases. As the High Court has repeatedly emphasised, leasehold interests may be treated as being proprietary for some purposes but a lease remains a type of contract (Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; [1985] HCA 14 at 29, 40-41, 51-52; Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (in liq) (2013) 251 CLR 592; [2013] HCA 51 at [39]-[40]). The tenancy cases make it clear that the executor nominated in a will has no authority to issue a notice to quit and terminate a tenancy of the deceased before the executor has obtained probate.
Counsel's submission in the Byers appeal in effect denied that s 61 had any effect at all. That was contrary to the way s 61 had always been understood, including by the High Court in Andrews. It is easy to see why the Full Court described the submission as "misconceived". It could readily have been disposed of without considering whether an executor has powers which go beyond title to the deceased's property, or the effect of s 61 on such powers.
The question for determination is who was authorised to exercise the right of rescission on behalf of Mr Lockrey's estate following his death. I have already explained why I consider that the weight of authority, including High Court authority, treats the answer to this question as depending upon the construction of the contract, not upon concepts of succession to "property". I think if I were to accept the argument put forward on behalf of Ms Deigan, I would also be adopting an analysis which is inconsistent with settled lines of authority in this State represented by the decisions in Isaacs J in Callan and of Yeldham J in Marshall. Those decisions in turn derive from decisions of the English Court of Appeal in the 1940s and the 1950s, which at the time were regarded as authoritative in this country. I would also be adopting a distinction between an executor's title to the deceased's property and "title to the position of executor" which I respectfully consider is questionable.
For these reasons, I reject the contention that Ms Deigan had authority, before the grant of probate, to issue a notice of rescission under cl 33.2. The notice which she issued on 18 May was invalid and ineffective to rescind the contract.

[31]

October notice of rescission

I have earlier concluded that when the May notice of rescission was issued, there had been no breach of the contract on Mr Lockrey's part and Mr Fussell had no accrued right to specific performance. But by October events had moved on.
Mr Brown issued a notice to complete on behalf of Mr Fussell on 1 June. The contract did not expressly provide for the purchaser to issue a notice to complete, but there was no dispute on behalf of Ms Deigan that Mr Fussell was entitled to make time of the essence in accordance with ordinary contractual principles. In my view the fourteen day period allowed was reasonable in the circumstances. It corresponded with the fourteen day period allowed for the vendor to issue a notice to complete, which could equally have occurred after the purchaser's death. It allowed sufficient time to obtain an urgent grant of representation. In my view the notice validly required Mr Lockrey's estate to complete the purchase by 16 June. Thereafter, the estate was in breach of the contract.
It may be that the breach occurred earlier. On 16 May Mr Brown, on Mr Fussell's behalf, sought to book in a settlement. The obligation then passed to Mr Lockrey's estate to co-operate towards the effectuation of settlement, in the first instance, by nominating a date for settlement within a reasonable time. I have found that this did not require the nomination of a date before the notice issued on 18 May; but clearly it did require the nomination of a date relatively soon after that. Again I doubt whether a reasonable date for settlement would have extended beyond the fourteen day period which was provided for the giving of a vendor's notice to complete. On that view, the estate was in breach in failing to settle from 30 May.
As I have mentioned, there was a debate whether, on the evidence, it was established that Mr Fussell had sufficient funds to complete the purchase, either at 10 May or thereafter. Mr Fussell never tendered the outstanding monies but the response from Mr Lockrey's side of the transaction clearly dispensed with the need for him to do so or to prove that he could have paid the necessary funds on the settlement date: Foran v Wight (1989) 168 CLR 385; [1989] HCA 51 at 427, 437, 442.
In my opinion, in issuing a fresh notice of rescission after the date on which the estate was obliged to complete, Ms Deigan was indeed taking advantage of the estate's own wrong. The October notice of rescission is invalid for this reason.
In the course of final submissions, counsel for Mr Fussell sought to raise a further point. Clause 33.2 did not expressly provide a time period within which the notice of rescission had to be issued. In such circumstances, as Ballas v Theophilos (see [269]-[270] above) shows, the law will imply a condition that the notice be issued within a reasonable time. Counsel argued that a reasonable time had expired before the October notice of rescission was issued, and it was invalid for that reason also.
Counsel for Mr Fussell acknowledged that this point had not been raised in Mr Fussell's pleadings. Counsel argued that that was unnecessary, pointing out that the onus lay on Ms Deigan to justify the notice of rescission. Alternatively, leave was sought to amend the Statement of Claim so as to raise the point.
I agree that it was unnecessary for this point to be pleaded in Mr Fussell's Statement of Claim; it was a point which arose in response to the notices of rescission and it was up to Ms Deigan's Defence to rely on those notices. But in my view the point had to be raised by way of Reply in order to avoid surprise.
In fact, no Reply was filed on behalf of Mr Fussell. This meant that Mr Fussell would have needed leave to file a Reply out of time raising the point. But counsel for Ms Deigan objected that, in that event, a Rejoinder would be necessary to raise an argument that the communications between the parties in the period after the service of the first notice of rescission gave rise to an estoppel which prevented the point now from being taken. There was no response to this from Mr Fussell. The basis for the foreshadowed estoppel argument was not explained. The position is not satisfactory but in view of my conclusions on other issues I do not need to deal with the argument now anyway. I will leave it to those representing Mr Fussell to decide whether to apply to file a Reply raising the point and deal with any further evidence and argument which may arise in due course. For obvious reasons, however, any such application would need to be made very promptly after the delivery of my judgment.

Fussell v Deigan

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