PLAINTIFF SEEKS TO SET ASIDE THE AGREEMENT BETWEEN HIM AND THE DEFENDANT ON THE GROUND OF UNCONSCIONABLE CONDUCT BY THE DEFENDANT
Mortimer v Ah Sam [2020] NSWSC 1763 (9 December 2020)
This case involves the plaintiff seeking to set aside the “Real Estate Sale and Purchase Agreement” between him and the defendant on the ground that the defendant took advantage of his special disability, namely poor vision and heightened sense of anxiety.
Facts:
This case concerns a document signed by the plaintiff and the defendant on over lunch at the Casino at Broadbeach (titled the Real Estate Sale and Purchase Agreement). The document provided for a purported sale to the defendant of 50% of a property of which the plaintiff is the sole registered proprietor.
The defendant purported to read the agreement to the plaintiff and mentioned a price of $300,000 and that it was an agreement to work things out and that he was a cash buyer. The plaintiff said he could not read the document and he was stressed about getting to hospital. The defendant said he should sign it and “it will all work out”. The defendant denies this and asserts that the plaintiff put his glasses on and purported to read the document and signed it without any difficulty at all. The defendant suggested the plaintiff remove his advertisement from Gumtree so he would no longer be pestered by others.
The plaintiff then went to the hospital for his operation. He stayed in a motel that night and went home the following day. The plaintiff said it was not until about 25 February that he read the document and when he did he was angry. He realised the price was different to that which he wanted, namely $300,000, not $250,000 as shown in the document.
The plaintiff submits the defendant took unconscientious advantage of his special disability, namely his “poor to very poor vision on 21 February 2019” and “heightened sense of anxiety” on the day. He submits the defendant knew of his weaknesses in health and financial status and gained an advantageous transaction as a result, having purported to read the agreement to the plaintiff but in terms that did not resemble the original Gumtree advertisement or the document the plaintiff actually signed.
Issue: Should the agreement be set aside?
Law:
- Civil Procedure Act 2005 s92, 104
Analysis:
The court is satisfied that the plaintiff foolishly entered so called negotiations with the defendant. He was ill-equipped to do so. He was unwell and had poor eyesight. The court accepts the plaintiff’s evidence that his eyesight was compromised on 21 February. The plaintiff was stressed about his health, his much younger wife and family and a mortgage which he had had on the property for some time. One further corroboration of the plaintiff’s foolishness is his even driving to the medical appointment on 21 February given the condition of his eyes.
The defendant was taking a keen interest and in my view astutely assessed how vulnerable and indeed foolish the plaintiff was. He prepared two versions of the written contract in advance of their meeting on 21 February. He drafted the terms and the court does not accept his evidence that he read it out over the phone at least twice to the plaintiff before the meeting.
Conclusion:
The court is satisfied that as a result of the defendant’s unconscionable conduct in so far as the agreement dated 21 February 2019 was binding it should be set aside. It follows that the defendant has no right to remain on the property. He is in effect a trespasser and should be ordered to leave the property.
