Abbas & Anor v M H Affordable Homes Pty Ltd [2020] NSWDC 516

Abbas & Anor v M H Affordable Homes Pty Ltd [2020] NSWDC 516

The proceeding was dismissed because it had not progressed in any substantial way since the Defence, the plaintiffs were in default of directions to serve evidence, Mr Abbas was outside the jurisdiction with no imminent prospect of return and was a critical witness, Ms Hassan could not presently prosecute the claim, further adjournments had no demonstrable utility, and the plaintiffs' prospects of proving that the contractual mental illness condition was enlivened were substantially doubtful.

Jurisdiction
Australia
Judgment Date
08 September 2020
Procedural Posture
Civil Proceeding Seeking Repayment of Monies Paid Under an Off the Plan Property Purchase Contract After Alleged Rescission / Hearing in Parramatta Civil List; Proceeding Dismissed for Want of Despatch
Outcome
Proceeding dismissed for want of despatch; plaintiffs ordered to pay the defendant's costs on the ordinary basis as agreed or assessed.
Legal Topics
['dismissal for Want of Despatch' 'rescission of Contract' 'off the Plan Property Purchase' 'special Condition Requiring Mental Illness' 'failure to Comply With Evidence Directions' 'costs']
['practice and Procedure' 'contract Law' 'property Law' 'mental Health Law'] ['dismissal for Want of Despatch' 'rescission of Contract' 'off the Plan Property Purchase' 'special Condition Requiring Mental Illness' 'failure to Comply With Evidence Directions' 'costs']

Case Brief

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Procedural Posture

Civil Proceeding Seeking Repayment of Monies Paid Under an Off the Plan Property Purchase Contract After Alleged Rescission / Hearing in Parramatta Civil List; Proceeding Dismissed for Want of Despatch

Legal Issues

  1. 1 ['Whether the proceeding should be dismissed for want of despatch where the first plaintiff was outside the jurisdiction, the second plaintiff had not complied with directions to serve evidence, and there was no imminent prospect of the first plaintiff returning to give evidence.' 'Whether the plaintiffs had sufficient prospects of establishing that the special condition permitting rescission was enlivened by proof that a purchaser was mentally ill as defined in the Mental Health Act 2007 (NSW).' 'Whether further adjournments had demonstrable utility in enabling the plaintiffs to prosecute the proceeding.']

Ratio Decidendi

The proceeding was dismissed because it had not progressed in any substantial way since the Defence, the plaintiffs were in default of directions to serve evidence, Mr Abbas was outside the jurisdiction with no imminent prospect of return and was a critical witness, Ms Hassan could not presently prosecute the claim, further adjournments had no demonstrable utility, and the plaintiffs' prospects of proving that the contractual mental illness condition was enlivened were substantially doubtful.

Court Disposition

Proceeding dismissed for want of despatch; plaintiffs ordered to pay the defendant's costs on the ordinary basis as agreed or assessed.

Orders

  • ['The proceeding is dismissed for want of despatch.' "The plaintiffs are to pay the defendant's costs on the ordinary basis as agreed or assessed."]