Ah Sam v Mortimer [2021] NSWCA 327

Ah Sam v Mortimer [2021] NSWCA 327

The appeal was dismissed because the primary judge's critical findings that the respondent had very poor eyesight, could not read the agreement, was unaware of the $250,000 price and other disadvantageous terms, and that the appellant knew or ought to have known of those matters and took advantage of them were open and not shown to be glaringly improbable or contrary to compelling evidence. Those facts established a special disadvantage and unconscionable procurement of the agreement. The procedural complaints, including adjournment, audio-visual link, and late amendment, caused no demonstrated substantive injustice; the bias allegations failed. Specific performance was unavailable...

Jurisdiction
Australia
Judgment Date
17 December 2021
Procedural Posture
Appeal From Supreme Court of New South Wales, Equity Division / Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['unconscionable Conduct' 'special Disadvantage' 'specific Performance' 'equitable Compensation' 'procedural Fairness' 'apprehended Bias' 'adjournment' 'audio Visual Link Hearing' 'pleadings Amendment']
['contracts' 'equity' 'civil Procedure' 'appeals'] ['unconscionable Conduct' 'special Disadvantage' 'specific Performance' 'equitable Compensation' 'procedural Fairness' 'apprehended Bias' 'adjournment' 'audio Visual Link Hearing' 'pleadings Amendment']

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Procedural Posture

Appeal From Supreme Court of New South Wales, Equity Division / Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that the agreement was procured by unconscionable conduct and was voidable in equity.' 'Whether the appellant was entitled to specific performance if the agreement was not avoided.' 'Whether the appellant was entitled to compensation for work, labour or expenditure on the property after the agreement was avoided.' 'Whether refusal of an adjournment on the first day of trial caused error or injustice.' 'Whether the remote hearing by audio-visual link caused practical injustice to the appellant.' 'Whether leave to amend the pleadings after evidence had closed caused unfair prejudice or denial of natural justice.' 'Whether the primary judge displayed bias or apprehended bias.']

Ratio Decidendi

The appeal was dismissed because the primary judge's critical findings that the respondent had very poor eyesight, could not read the agreement, was unaware of the $250,000 price and other disadvantageous terms, and that the appellant knew or ought to have known of those matters and took advantage of them were open and not shown to be glaringly improbable or contrary to compelling evidence. Those facts established a special disadvantage and unconscionable procurement of the agreement. The procedural complaints, including adjournment, audio-visual link, and late amendment, caused no demonstrated substantive injustice; the bias allegations failed. Specific performance was unavailable...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.' 'The stay of execution of the writ for possession will lapse.']